Mr Jarrod Benjamin James v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia
[2022] FWC 1530
•15 JULY 2022
| [2022] FWC 1530 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jarrod Benjamin James
v
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia
(U2021/11576)
| COMMISSIONER RIORDAN | SYDNEY, 15 JULY 2022 |
Application for an unfair dismissal remedy
On 13 December 2021, Mr Jarrod James (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 Veolia Environmental Services (Australia) Pty Ltd T/A Veolia (the Respondent) on 26 November 2021 for failing to comply with a lawful and reasonable direction and inability to perform his duties due to not receiving a COVID-19 vaccination.
The Applicant was employed by the Respondent as a Waste Collection, Rear Lift Driver from 22 January 2018 until the date of his dismissal. The Applicant’s employment was covered by the Veolia Environmental Services (Australia) Pty Ltd SA & NT Refuse Agreement 2015-2018 (the 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 COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) came into effect directing for mandatory vaccination of 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 19 October 2021, the Respondent’s ‘COVID-19 Response Team’ sent email correspondence to all staff regarding the Northern Territory vaccination requirements (CHO Direction No. 55) as follows:
“Dear all,
The Northern Territory Government has announced that COVID-19 vaccination is to become mandatory for certain workers, with the first does required by 12 November 2021, and full vaccination required by 24 December 2021.
Northern Territory Workers to whom mandatory vaccination applies Which Veolia workers (employees and contractors) does this apply to? - People who work in customer-facing roles, including but not limited to retail
- People who work in Aboriginal communities and community services sectors
- People who work in high risk settings where COVID-19 transmission or an outbreak may occur, including but not limited to mining sites and ships
- People who work in essential infrastructure and logistics, including but not limited to electricity, gas, water, sewerage, telecommunications and remote infrastructure
Impacted workers include, but is not limited to:
- Transfer station and landfill workers
- Waste collection workers
- Workers on mining and resources sector sites, water treatment and processing facilities and remote infrastructure sites and projects
- People who visit customers sites in the course of their normal duties
The Northern Territory government has advised that is it mandatory for workers in these settings to “get the COVID-19 vaccination and show evidence of this to their employer to continue working in the same role”.
Action required by Veolia employees and line managers:
All Veolia employees in the Northern Territory who meet the above definition must:
- Before 12 November 2021: please advise your line manager if you have had your first COVID-19 vaccination, and confidentially share your vaccination certificate (first or both doses) via Veolia’s secure link, or using the QR code below.
- Before 24 December 2021: please advise your line manager of your full COVID-19 vaccination status, and confidentially share your vaccination certificate via Veolia’s secure link.
- Employees need to carry proof of vaccination with you (either a hard or electronic copy).
If you have any questions please reach out to your site COVIDSafe Representative, Site Manager or SHEQ Representative. You can also visit the Northern Territory Government’s vaccination Frequently Asked Questions page
You can book your COVID-19 vaccine appointment online or by calling the COVID-19 Hotline…
If you need to reach out to anyone for support at this time, please contact Veolia’s free and confidential Employee Assistance Program, THRIVE (by Assure Programs) on [redacted].
Stay Safe.
COVID-19 Response Team”
The Applicant wrote to Mr Richard Kirkman, the Respondent’s Managing Director and Chief Executive Officer (CEO), on 24 October 2021 regarding CHO Direction No. 55:
“Dear Mr Kirkman,
Re: My Employment Contract - The Effect of the Northern Territory Government's Covid Vaccination Mandate
I am writing directly to yourself to request consideration of potential legal conflict between myself and Veolia ("the company") arising out of the matters explained below.
I offer my apology for directly approaching you but, in the circumstances, it is apparent that any further attempt to discuss this matter with my direct supervisors, here in Darwin, would be pointless. I have already endeavoured to do so, and it is quite apparent that any decision to resolve the matters that I wish to raise must be made at the highest level.
I have diligently, and happily, served the company as a waste collection driver, at Darwin NT, for the past 5 years. However, on 19 October 2021, I received official email correspondence from the company to the effect that my employment fits a category that, it is said, obliges the company to direct me as follows:
• Before 12 November 2021 advise my line manager if I have had the first COVID-19 vaccination;
• Before 24 December 2021 advise my line manager of full COVID-19 vaccination status and upload a vaccination certificate to Veolia's secure link; and
• Carry proof of vaccination with me thereafter.
This instruction is unacceptable to me. I cannot and am not obliged to comply with it.
The instruction is based on the false premise that the certain subordinate legislation applies to my employment [Northern Territory COVID-19 Directions (No. 55) 2021 of 13 October 2021). It does not. Subsequently, I will explain why not. More immediately however I wish to point out that even if the Directions did apply to my employment, any decision by the company to enforce the directions against me which is instrumental in the loss of my employment with the company, or of me being deprived of my normal earnings with the company, would be a breach of my employment contract. Although I would not wish to do so, I will not hesitate to sue if either or both of those adverse outcomes occur.
I will now turn to the issue of why the subordinate legislation is inapplicable to my circumstances. I begin by drawing your attention to these pertinent facts.
Paragraph 4 of the Northern Territory's COVID-19 Directions (No. 55) 2021- Directions For Mandatory Vaccination of Workers to Attend the Workplace relevantly defines “worker” in the following manner:
4 These Directions apply 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-19 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.
The only possible content of that definition which might be argued to apply to me are those contained in subparagraph (a) and (b). However any contended application of those provisions, would be a specious argument when applied to my personal employment circumstances.
In respect of subparagraph (a), I assure you that there is no possibility of me coming into "contact with a vulnerable person". As a practical matter, there is indeed no one with whom I come into contact in the performance of my duties. I say that in the context that "contact", as defined by a medical dictionary, means " the touching or apposition of two bodies". As a matter of prudence, and out of respect for the current official and general community consensus that social distancing is desirable, I naturally expand that definition as a precaution against cross infection by maintaining a 1.5 metre distance from other members of the community in the workplace said elsewhere.
In the interests of preserving my employment, I offer to give you my written assurance that I will at all times conform to that principle in the performance of my duties. If you deem it necessary, I would agree to a variation of my employment contract to that effect. What I will not do however is concede that my employment contract authorises you to globally classify me as a member of the workforce who is “likely to come into contact with a vulnerable person”!
That is not the only basis upon which subparagraph (a) is inapplicable to my employment. The full statement of the test is whether I am "likely to come into contact with a vulnerable person11 in the course of performing my duties. In the prior paragraphs I have explained that, for relevant purposes, I will not be coming into “contact” with anybody. Incidentally, neither of the concepts “contact” nor “come into contact” are defined in any of the relevant legislation (principal or subordinate).
To fortify my contention that subparagraph (a) does not apply to me, I now turn to the concept of "vulnerable person" . Not a single person whom I do, or am likely to, encounter whilst performing my duties could, by any stretch of the imagination, be classified as a “vulnerable person” ! The Directions define such people in these terms:
3 A person is considered to be vulnerable to infection with COVID-19 if:
(a) the person is under 12 years of age; or
(b) the person cannot be vaccinated with an approved COVID-19 vaccine due to a contraindication to all approved COVID-19 vaccines; or
(c) the person is an Aboriginal person; or
(d) the person is at risk of severe illness from COVID-19 for medical reasons, such as being on ·immune suppressive therapy after an organ transplant or having chronic kidney, heart, liver or lung disease.
I assure you that no such people have any connection with the duties that I perform.
Moreover, there are equally cogent reasons to say that subparagraph (b) has no application to my employment. My duties, waste collection, cannot, by any stretch of the ordinary meaning of the English language, be classified as related to “essential infrastructure or essential logistics”.
The word “infrastructure” does not appear in 2020 consolidation of Public and Environmental Health Act. Nor is it used in the 2020 consolidation of the Public and Environmental Health Regulations in the sense of being a single, stand-alone, noun. It is mentioned in the regulations but only as part of the phrase “public health infrastructure” in regulation 53A which applies only to major public events and is a reference to facilities made available at public entertainment and sporting venues. That instance of the word appearing in the regulations has no relevance to my employment.
In the absence of any statutory definition, necessarily, the ordinary English language meaning of the word “infrastructure” is the operative test. That meaning may be found in the Oxford English Dictionary which defines 'infrastructure' as a noun meaning “the basic physical and organisational structures needed for the operation of a society or enterprise (for example, buildings, roads, power supplies).” Uplift and transportation of waste does not fall within that concept; hence, in the performance of my duties, I am in no way engaged in "the operation or maintenance of essential infrastructure"!
Some may argue however that those duties do involve “the operation or maintenance of.....essential logistics”. That argument would not stand up against the Oxford English dictionary! As the word "logistics" is not subject to any specific definition in the legislation (principal or subordinate), it stands to be interpreted in accordance with its ordinary English language meaning. That is, for relevant linguistic purposes, "the commercial activity of transporting goods to customers" .
My work does not involve that!
Accordingly there is no basis upon which it can be said that paragraph 4 of the Northern Territory's COVID-19 Directions (No. 55) 2021 applies to my employment with the company. In the circumstances, I ask that you give appropriate instructions to your Darwin management to the effect that my position in relation to this matter be respected and accommodated. Given the urgency of the situation, I consider it reasonable to expect a response within 7 days.
Before concluding my representations, I suggest it would be constructive of me to make observations regarding the direct impact of the subordinate legislation on the company. I refer to paragraph 10 of Directions (No. 55) 2021 which reads "A person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the worker's workplace contrary to directions 6 and 7."
Those latter two provisions are regarded by many as being the mandate which bans unvaccinated workers from attending "the worker's workplace". On their face, interpreted in isolation, these 3 paragraphs might be argued to extend so far as to restrain me, as an unvaccinated worker, from attending the company's Darwin depot. Moreover, an extrapolation of that argument would include the contention that the company would be liable to penalty for breach of paragraph 10!
Such an extreme interpretation is not supportable because those provisions do not stand in isolation. They stand to be construed and applied in the light of paragraph 4 which specifies the workers to whom paragraphs 6, 7 and 10, and the totality of Directions (No. 55) 2021 generally, apply. As I have explained above, by force of the true meaning of the content of paragraph 4, Directions (No. 55) 2021 do not apply to me (or my employment).
Moreover Directions (No. 55) 2021 specifically takes into account that possibility in the contents of paragraph 11. That provision reads:
Nothing in these Directions prevents a worker who is not vaccinated as specified in directions 6 and 7 or exempt from vaccination under direction 8 from working at a place where the worker, during the course of work:
(a) is not likely to come into contact with a vulnerable person; and
(b) is not likely to come into contact with a person or thing that poses a risk of infection with COVID-19; and
(c) is not likely to be exposed to a high risk of infection with COVID- 19.
As I have explained in the prior contents of this correspondence, the predication of this paragraph applies to me. Accordingly neither the company nor myself will be in breach of the Directions if I continue to perform my normal duties.
As a dedicated employee of the company, it has been painful for me to involve myself in the confrontation implicit in this correspondence. Please be assured that is not my intention to quarrel with the company. I would very much prefer less controversy in my relations with my employer. However, my situation is such that the impact of the subordinate legislation on my employment life constitutes an imposition that I cannot tolerate. I have many reasons for that viewpoint which I would be content to share with you should you be interested.
Moreover, it is clear to me that the company, as my employer, is being exploited by the Northern Territory government insofar as if it were to attempt to directly legislate its policy it could only do so by enduring widespread political disapproval. It is neatly attempting to avoid that outcome by manipulating specific employment relationships in such a way that the employers must do the government's dirty work.
Yours Faithfully
Jarrod B James”
On 27 October 2021, the Respondent wrote to the Applicant clarifying the Respondent’s position regarding mandatory vaccination:
“Dear Jarrod
COVID-19 Vaccination
I refer to your letter to Richard Kirkman dated 24 October 2021.
Thank you for taking the time to provide a detailed and considered submission as to why you believe you should be exempt from complying with the requirement to be vaccinated against COVID-19.
However, for the reasons set out below, Veolia stands by its requirement that you provide proof of your first COVID-19 vaccination on or before 12 November 2021 and your second vaccination on or before 24 December 2021.
Northern Territory COVID-19 Directions
First, Veolia does not share your view that you are not required to comply with the Northern Territory COVID-19 Directions (No. 55) 2021 which came into effect on 13 October 2021 (Directions) pursuant to the Public and Environmental Health Act 2011 (NT).
As a Rear Lift Driver, the primary purpose of your role is to operate a rear lift vehicle to collect and transport waste from customers' premises and deliver it to an authorised waste disposal depot in a safe and responsible manner. Of necessity, you will come into contact with customers and third parties and you will need to get in and out of your vehicle to do your job, which includes the manual handling of bins. This means you are likely to come into contact with vulnerable persons (as that term is defined in the Directions) whether you choose to or not. Further, working in a public-facing role, you have no way of ensuring you are not in contact with vulnerable persons in circumstances where you should assume a person whose vaccination status you do not know is 'vulnerable'.
While we appreciate your commitment to practise safe social distancing, you cannot control the persons with whom you will come into contact in performing your job, including fellow Veolia workers, some of whom are Aboriginal.
Reasonable and lawful requirement
Second, irrespective of the Directions, Veolia has a duty of care to all of its workers to provide and maintain a safe workplace which includes taking measures to minimise the risks of COVID-19 in the workplace so far as is reasonably practicable.
Veolia has taken the view that in circumstances where its NT waste collection drivers have a public-facing role in providing an essential service, must interact with customers and visit third parties' premises, operate a vehicle that is used and accessed by other workers, and handle bins that have been handled by third parties, and Veolia's workforce includes vulnerable persons, it is both lawful and reasonable to require all of its waste collection drivers, including you, to be vaccinated against COVID-19.
Further, Veolia's clients (some of whom you are required to service as part of your job) have imposed, and are likely to impose, a requirement that all persons entering their premises or facilities must be vaccinated. If you elect to remain unvaccinated (which is your right) and, as a result, you are not permitted to enter a client's or third party's premises or facilities (for example, the City of Darwin's Shoal Bay Waste Management Facility), you will be unable to properly and effectively do your job and this will likely have consequences for your ongoing employment with Veolia.
Next steps
Should you fail to provide Veolia with proof of your first COVID-19 vaccination on or before 12 November 2021, you will not be able, nor will you be permitted, to perform your job from 13 November 2021 and you will be stood aside on leave without pay from that date until further notice. You may choose to access your annual leave or accrued RDO's if you prefer, in which case you will need to advise your leader, Mr Nick Walker.
As previously advised by Veolia's COVID-19 Response Team:
1. You may confidentially share your vaccination certificate via Veolia's secure link or by using the QR code provided. Please see Nick Walker for this code.
2. While at work, you will need to carry proof of your vaccination status with you (either a hard copy or electronic copy) as some of Veolia's clients will require this.
3. You can book your COVID-19 vaccine appointment online or by calling the COVID-19 Hotline on 1800 490 484.
You may contact Veolia's free and confidential Employee Assistance Program, THRIVE (by Assure Programs), on [redacted] if you feel this would be of benefit to you at this time.
Your sincerely
Richard Hesketh
Workplace Relations Manager”
On 28 October 2021, the Applicant was provided a Medical Certificate by his General Practitioner, which stated that he was receiving medical treatment and for the period 28 October 2021 to 25 November 2021, he would be unfit to continue his usual occupation.
The Applicant wrote to Mr Hesketh on 1 November 2021 as follows:
“Dear Mr Hesketh
Re: My Employment Contract - The Effect of the Northern Territory Government's Covid Vaccination Mandate
Thank you for your letter of 27 October 2021 which I accept as written on behalf of, and on instructions from, the CEO of Veolia. Hence, I take the contents of that letter to have been written with the full authority of the company. If I am mistaken in that assumption, please advise me.
On an examination of that letter my assessment is that the crucial difference between the company's position and my own views arises in respect of the meaning of "vulnerable persons". Your letter asserts that anyone whom I may encounter in the course of my employment may, of necessity, be “vulnerable”. Essentially, on behalf of the company, you are contending that everybody is vulnerable.
Obviously your position is expressed from the standpoint of expert advice; as is mine. In those circumstances, I regard it as pointless to engage in a debate with you. I will content myself with making the central points (again on advice) that are set out in the appendix to this letter.
Your correspondence to the effect that I must proceed to become vaccinated if I wish to keep my job, or I will be stood aside on leave without pay from that date until further notice, ,in my judgement, has two impacts on me. These are:
(1) the company is constructively dismissing me; and
(2) alternatively, should I wish to avoid that outcome, I am required to participate in a clinical trial without my consent.
I say, “clinical trial” because that is the recognised reality of the Covid vaccination's status.
The Commonwealth's Therapeutic Goods Administration has given only provisional approval, on an emergency basis, for the use of the vaccines. Their acceptance as a safe procedure by a proportion of the Australian community is an act of faith. The absence of the fulfilment of the standard required procedures and techniques of verification, that are traditionally applicable to new vaccinations, extending over a lengthy period of years, establishes that in terms of medical science the vaccines remain experimental and the long-term effects are unknown.
This is confirmed by no less an authority than the Federal Minister for Health the Honourable Greg Hunt MHR. On 21 February 2021, speaking on the ABC, he said that Australia's Covid-19 vaccine roll out was part of a global clinical trial. Some of his actual words included: "The world is engaged in the largest clinical trial, the largest global vaccination trial ever... "
Also, on 2 June 2021, both Dr (and Professor) Paul Kelly, the Commonwealth's Chief Medical Officer, and Professor John Skerritt, Commonwealth of Health Deputy Secretary, Health Products Regulation, and Chair of the Therapeutic Goods Administration, confirmed to Senate Estimates Committee that the vaccines only enjoy provisional approval in Australia.
I say "without my consent" because any consent that I might give to submit to vaccination would not be a valid consent. It would be a consent extracted by economic coercion. The word "consent" is defined for vaccination purposes in the 10th Edition of the Australian Governments Immunisation Handbook. Section 2.1.3 of that publication states:
VALID CONSENT
For consent to be legally valid, the following elements must be present:
1. It must be given by a person with legal capacity and of sufficient intellectual capacity to understand the implications of being vaccinated.
2. It must be given voluntarily in the absence of undue pressure, coercion or manipulation.
3. It must cover the specific procedure that is to be performed.
The key factor of informed consent (point 2 above) is not satisfied in this case. If I were to give a consent, it would not be a voluntary consent. As I have said above, it would be a consent induced by economic coercion.
It is seemingly strange that Veolia is ignoring the views of Australia's Prime Minister, the Honourable Scott Morrison MHR. On 23 July 2021 he made a public media· statement to this effect: ·"...we are all responsible for our own health......in our country people make their own decisions about their own health and their own bodies AND THAT IS WHY WE DON'T HAVE MANDATORY VACCINATIONS ... "
I now wish to draw your attention to my reasons for being apprehensive regarding the vaccine. Numerous countries around the world have adverse reactions reporting systems to track Covid-19 Vaccine side effects activity. The Australian Therapeutic Goods Administration Vaccine adverse reactions reporting system, Database of Adverse Event Notifications regarding medicines notes there has been 66,956 adverse reactions notified and 589 deaths.
That is in keeping with the even more dramatic events reported by the USA's Centre for Disease Control Vaccine Adverse Event Reporting System. It notes that there have been 3,146,691 adverse reactions and 14 506 deaths notified. Similarly the United Kingdom Yellow Cards vaccine adverse reactions reporting system notes there has been 1,196,813 adverse reactions and 1,665 deaths in that country. Also, VigiAccess, the World Health Organisation adverse reactions reporting system, notes that there has been 2,323,143 adverse reactions drawn to its attention.
These statistics are of great concern to me. I fear for my personal safety should I consent to being vaccinated. Given that it is Veolia's obligation to provide me with a safe system of work (in common with your other employees) there are a number of questions that I suggest you should answer before I submit to vaccination. These are:
1 What measures has Veolia taken, or will take, to mitigate the potential for me suffering any adverse reaction or death?
2 What compensation scheme has Veolia put in place to address, and respond to, the possible event of me suffering a vaccine adverse reaction or death?
3 Is Veolia willing to give me (and other relevant employees) a written
vaccination warranty giving assurances of compensation should any such adverse event occur?4 Is Veolia willing to obtain and provide a detailed guide as to the ingredients that are in the vaccine in order to inform my consent?
5 By what means, and when, will Veolia determine whether or not I might suffer an adverse reaction to the vaccine or one of its ingredients?
6 Has Veolia investigated, and obtained a satisfactory explanation, as to why the vaccine manufacturers are exempted from liability for adverse patient reactions to their product?
7 Would you please inform me whether Veolia has done a risk versus benefit analysis of the potential impact of the vaccination on the personal health of employees who are required to consent to vaccination under threat of loss of employment?
8 Would you please identify to me the content of my employment contract on which you rely to require me to participate in medical procedure?
In conclusion, if the company is unwilling to retreat from the coercion that is necessarily the result of your interpretation of the meaning and effect of the Directions, I must give you notice that should I consent to the vaccination and suffer any injuries as a result, my intention is to press a claim for legal recompense.
Alternatively, if I choose to maintain my refusal to accept the vaccines and as a consequence you prejudice my status as an employee by implementing your threat to stand me aside without pay, the company will be liable for constructive dismissal, and I will make an appropriate claim. In either case, this is notice of your potential liability.
Yours Faithfully
Jarrod B James”
Mr Hesketh responded to the Applicant by way of written letter on 3 November 2021:
“Dear Jarrod
COVID-19 Vaccination
I refer to your letter dated 1 November 2021.
Veolia is required by law to comply with the Northern Territory Government’s public health orders and directions (Directions). Recently issued Directions require Veolia to ensure that workers in particular categories do not attend for work, or perform work, unless they are fully vaccinated against COVID-19.
You fall into one of those categories. Therefore, if you choose not to be vaccinated against COVID-19, you will be unable to attend for duty to perform your job.
I appreciate you may have queries or concerns about the COVID-19 vaccination. However, the matters raised by you in your letter are not matters within Veolia’s control and/or knowledge and, as such, it would not be appropriate for Veolia to address them. Rather, you should seek advice from a medical practitioner, such as your GP.
Veolia therefore stands by its requirement that you provide proof of your first COVID-19 vaccination on or before 12 November 2021 and your second COVID-19 vaccination on or before 24 December 2021 or otherwise confirm that you are electing not to be vaccinated. Please note that, if you do not provide proof of your vaccination status, Veolia is obliged to treat you as an unvaccinated employee.
Should fail to provide Veolia with proof of your first COVID-19 vaccination on or before 12 November 2021, you will not be able, nor will you be permitted, to perform your job from 13 November 2021, and you will be stood aside on leave without pay from that date, and Veolia will consider the termination of your employment.
Information regarding sharing of your vaccination certificate, as well as how to book a vaccination, was provided to you in our letter to you of 27 October 2021.
You may contact Veolia’s free and confidential Employee Assistance Program [redacted] if you feel this would be of benefit to you at this time. However, this Program is not intended to provide, nor will it provide, medical or health advice on COVID-19 vaccinations.
Yours sincerely
Richard Hesketh
Workplace Relations Manager”
On 12 November 2021, the Respondent placed the Applicant on leave without pay:
“Dear Jarrod
Leave without pay
I refer to the Northern Territory COVID-19 Directions (No. 55) 2021 which came into effect on 13 October 2021 (Directions) pursuant to the Public and Environmental Health Act 2011 (NT).
As previously advised, the Directions require you to have received your first COVID-19 vaccine dose by 11.59pm on 12 November 2021 and to be fully vaccinated by 24 December 2021 (unless you provide a certificate issued by the Commonwealth that certifies you have a permanent or temporary contraindication to all approved COVID-19 vaccines). We have not received any such certificate and you have failed to comply with the Directions and with Veolia's lawful and reasonable direction.
Accordingly, from 13 November 2021 you are not permitted to perform your job and you are therefore not ready, willing and able to perform your job. This means you are not entitled to payment and you will, from 13 November 2021, be placed on unpaid leave.
Your access to paid personal leave ceases as from 13 November 2021 given you are not ready, willing and able to do your job and would not be receiving payment if you were not ill. Should you wish to receive payment from 13 November 2021, you will need to request annual leave (or long service leave or accrued RDO's if you have these entitlements). Please note: Veolia gives no guarantees as to the duration of your period of approved leave, whether unpaid or paid, and will review your employment status over the coming days.
Should your vaccination status change, please let us know. Otherwise, we will write to you shortly regarding your employment
I understand that matters such as these can prove difficult. If you require further support, Veolia provides free and confidential counselling services to employees. These services may be contacted on [redacted].
Yours sincerely
Signed
‘for’ Nick Walker
State Manager Northern Territory”
The Respondent further wrote to the Applicant on 16 November 2021:
“Dear Jarrod
COVID-19 Vaccination
I refer to the Northern Territory COVID-19 Directions (No. 55) 2021 announced on 13 October 2021 (Directions) pursuant to the Public and Environmental Health Act 2011 (NT).
The Directions state that certain workers in the Northern Territory must receive their first COVID 19 vaccine ('the vaccine) in order to continue working as from 13 November 2021.
Background
1. The Directions came into effect at 11:59 pm on 12 November 2021.
2. The Directions impose certain obligations on Veolia in respect to specific 'workers'.
3. You are a 'worker' for the purposes of the Directions.
4. On 27 October 2021 and 3 November 2021, we informed you of the requirement for us to collect, record and hold vaccination information about you. Specifically, Veolia must obtain information about your COVID-19 vaccination status.
5. From 13 November, 2021 onwards, in order for you to be able to attend your workplace to do your job, you are required to provide evidence of your vaccination status to Veolia. Specifically, Veolia needs to know whether you are fully vaccinated, or partially vaccinated with a booking to receive the second dose by 24 December, 2021, or simply unvaccinated.
6. If Veolia does not hold vaccination information about you, we must treat you as if you are unvaccinated unless you are an 'excepted person' with an appropriate medical exemption.
7. You have advised your Veolia Leader that you are not partially vaccinated, nor did you have a booking to receive by 12 November, 2021 your first dose of a COVID-19 vaccine. You also did not provide evidence of a medical exemption.
8. As a result, you were excluded from having access to the workplace as from 13 November, 2021 and placed on leave without pay with the option of using your accrued annual leave entitlements if you so wished.
9. The deadlines for you to receive the first and second dose of a COVID-19 vaccine remain 12 November, 2021 and 24 December 2021 respectively.
10. Veolia confirms it must continue to exclude you from accessing your workplace in line with the Directions because you were not partially vaccinated as at 12 November, 2021 and/or you have failed to provide Veolia with your vaccination information despite the request to do so and/or you have confirmed you do not intend to be vaccinated. This means you continue to be unable to perform your job.
Extension of leave without pay
11. Veolia has determined that until such time as you are permitted to attend your workplace and are able to perform your job, you will remain on unpaid leave. However, Veolia reserves the right to vary this date at its discretion and makes no guarantee as to the duration of any period of approved unpaid leave.
Lawful and reasonable direction by Veolia
12. You are hereby directed to provide to your Veolia Leader by 12:00 noon on Monday, 22 November 2021:
(a) evidence that you have received your first COVID-19 vaccine dose; and
(b) evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or
(c) certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contraindication or an acute medical illness.13. Notwithstanding the provision of evidence that satisfies paragraphs 12(a) and (b) above, if you are not fully vaccinated by 24 December 2021, you will continue to remain on unpaid leave until such time as you have received the second dose of a COVID-19 vaccine and are able to return to work and do so.
14. A failure to comply with the direction in paragraph 12 by the required deadline, will constitute a failure to comply with a lawful and reasonable direction and this will be regarded as conduct warranting disciplinary action which may include the termination of your employment.
15. In the alternative, if you remain unable to attend the workplace to perform your job, Veolia may have no option other than to terminate your employment as it cannot continue to place you on unpaid leave indefinitely.
This is a serious matter and Veolia encourages you to seek medical advice from a medical practitioner. If you require further support, Veolia provides free and confidential counselling services to employees. These services may be contacted on [redacted].
Yours sincerely
Anthony Roderick
Chief Operating Officer – Waste”
The Applicant responded to Mr Anthony Roderick, COO – Waste, and Mr Nick Walker, State Manager on 17 November 2021:
“Dear Mr Roderick and Mr Walker
Re: My Employment Contract - The Effect of the Northern Territory Government’s Covid Vaccination Mandate
I acknowledge your respective letters of 16 November and 12 November. As the most recent letter covers similar topics to the earlier correspondence, I will focus this reply on Mr Roderick's letter. I have however also addressed this reply to Mr Walker, as a matter of courtesy, and for the reason that I do not have an email address for Mr Roderick.
As an introductory remark, I must say that I'm very disappointed at the company's overbearing approach to the circumstances currently applicable to my employment. In January 2022, I shall have served the company faithfully for 5 years. The dismissive manner in which I am now approached is a poor reward for my dedicated service. I will say no more on that subject and move directly to give you my response to the letter of 16 November.
You say that I am a "worker" for purposes arising from the Chief Health Officer's Directions No.55 and as a consequence you consider that you have the lawful and reasonable authority to give me the option to either undergo vaccination or be stood down from my employment.
In my letter of 1 November, I stated my position in respect of that fallacy. I explained that I am not a "worker" for relevant purposes. Nonetheless the company has chosen to ignore my position (which I maintain). Necessarily I must I acknowledge, and comply with, your instruction that as from 13 November 2021 I am not permitted to attend the workplace and perform my job.
However I emphatically deny that your instruction, with that effect, means that I am not ready, willing and able to perform my job. I am indeed ready willing and able to perform my job and I am being unlawfully prevented from doing so as a result of the company's improper application of its interpretation of CHO's Directions 55.
In the belief that I am not entitled to payment of my normal wages you say that I will be (or perhaps have been) placed on unpaid leave. You justify that position by your claim that I am not ready willing and able to perform my job; but that is not the fact. The company is preventing me from doing my job which I would be more than willing to do if the company were to properly apply the CHO's Directions 55.
In paragraph 12 of the letter of 16 November, the company purports to give me certain directions and subsequently, in paragraph 14, it is asserted that if I do not comply with those directions I will have failed to comply with a lawful and reasonable direction which may result in the termination of my employment. I do not concede the correctness of these contentions.
The company has no right to direct me to undergo vaccination and submit proof. The company's reliance on the CHO's Directions is misconceived. · Indeed, it is a breach of my employment contract for the company to direct me in this manner. More specifically, it will be unfair dismissal if the company chooses to invoke a supposed power of termination of my employment on these grounds.
In addition, the substantive effect of paragraph 11 to 15 inclusive, of your letter of 16 November, is to improperly ban me from the workplace on the grounds that the company will classify me as "unvaccinated" for Covid purposes.
That is not only a breach of my employment contract, but it is also a breach of the Disability Discrimination Act 1992 (Cth) which prohibits discrimination against a person in the workplace because of a disability. For relevant purposes, section 4 of that act defines discrimination as including discrimination based upon any imputation that, in my body, there could or may be an organism which capable of causing disease or illness.
The company's action of excluding me from the workplace on the ground of failure to comply with paragraph 12, is of the same substance as making an allegation that I am a potential spreader of Covid. The company's conduct, in this respect, fits within definition of discrimination for the purposes of the section 4 of the Disability Discrimination Act.
Turning to another issue, I am shocked that the company has chosen to behave as though my current medical condition is irrelevant. On 28 October I submitted to Mr Walker a medical certificate which certifies that I am ill and under treatment until 25 November. I ask that you give immediate confirmation that my entitlement to paid sick leave throughout this period will be honoured.
I make that request because both of the company's recent letters are expressed in a way that suggests this will not be the case.
As I said in my second paragraph above, I am very disappointed at the way in which the company is treating me. Nonetheless, I must accept that; but, in concluding this correspondence I wish to say that we really ought to talk more constructively to each other.
As however that does not appear to be your policy, I can only remind you of the fact that if you choose to terminate my employment, or to repudiate my entitlement to sick leave or other privileges, if necessary, I will stand up for my rights by taking the appropriate action.
Yours Faithfully
Jarrod B James”
Mr Hesketh acknowledged the Applicant’s letter of 17 November 2021, and provided a response by email on that same date as follows:
“Dear Jarrod
Veolia acknowledges receipt of your most recent letter of 17 November 2021, and I provide this response on behalf of Mr Walker and Mr Roderick.
Veolia stands by its previous correspondence to you of 27 October, 2021, 3 November, 2021, 12 November, 2021, and 16 November, 2021.
As per our correspondence to you of 16 November, 2021 you have until 12:00 noon on Monday, 22 November 2021 to provide to Mr Walker
a. evidence that you have received your first COVID-19 vaccine dose ; and
b. evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or
c. certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contraindication or an acute medical illness.
Yours sincerely
Richard Hesketh
Workplace Relations Manager”
The Applicant’s former representative, Mr Lucio Matarazzo, Industrial Relations Consultant for Lucio Matarazzo Pty Ltd, wrote to the Respondent on 21 November 2021 on the Applicant’s behalf:
“Dear Mr. Richard Hesketh,
Re - Our client Mr. Jarrod James.
Our industrial relations consultancy writes to Veolia on behalf of and with the authority of Mr. Jarrod James who is employed by Veolia in Darwin.
Our consultancy also attaches the signed authorization of Mr. Jarrod James confirming that our consultancy can act for Mr. Jarrod James in relation to his employment matters.
Our consultancy attaches the Medical Certificate that Mr. Jarrod James provided to Veolia on 28 October 2021 as attached as exhibit 1 and our consultancy has also seen the attached exhibit 2 being the two correspondences to Veolia dated 12 November 2021 and 16 November 2021.
Industrial Relations Matters for consideration .
1. Mr. Jarrod James has provided a legitimate medical certificate to Veolia pursuant to
section 97 (a) of the Fair Work Act (Cth) confirming that he is on legitimate sick leave from 28 October 2021 to 25 November 2021 and the COVID19 Directions (Numbers 55) 2021 issued by the Northern Territory Government Chief Health Officer cannot override section 97 (a) of the Fair Work Act (Cth).2. His legitimate sick leave certificate is in relation to a number of other health matters, not matters pertaining to contraindication pertaining to COVID19, and as such Veolia is still obligated to comply with section 97 (a) of the Fair Work Act (Cth).
3. Veolia has an obligation to continue to pay him for his sick leave pursuant to section 97 of the Fair Work Act (Cth) to the end date as stated in his sick leave medical certificate.
4. For the sake of completeness section 97 of the Fair Work Act (Cth) states as follows -
"An employee may take paid personal/carer's leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:(i) a personal illness, or personal injury; affecting the member; or
(ii) an unexpected emergency affecting the member.
5. In good faith Mr. Jarrod James requests that Veolia be aware of its obligations to Mr. Jarrod James pursuant to sections 97 and 352 of the Fair Work Act (Cth) as explained in the case authority[2012] FMCA 208 Kavassilas v Migration Training Australia Pty Ltd (No.2 ) (29 March 2012).
6. For the sake of completeness section 352 of the Fair Work Act (Cth) states as follows
352 Temporary absence-illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).7. Our consultancy notes that in the Veolia correspondence dated 12 November 2021 states
"Accordingly, from 13 November 2021 ... ... ... ... ... ... ... .... .you will from 13 November 2021, be placed on unpaid leave.
Your access to paid leave ceases from 13 November 2021 "
8. Our consultancy states that Veolia is in contravention of sections 97 and 352 of the Fair
Work Act (Cth) as stated in its correspondence dated 12 November 2021 and in addition Veolia cannot lawfully suspend Mr. Jarrod James without pay and this is confirmed in the Federal Court of Australia decision [2017] FCA 859 Avenia v Railway & Transport Health Fund Ltd (4 August 2017) where Justice Michael Lee states as follows -154. At common law, an employer has no right to suspend an employee without pay ... ,,
9. Our consultancy states that Veolia is in contravention of sections 97 and 352 of the Fair Work Act (Cth) as stated in its subsequent correspondence dated 12 November 2021 and again relies on the Federal Court of Australia decision [2017] FCA 859 Avenia v Railway & Transport Health Fund Ltd (4 August 2017) Justice Michael Lee.
10. In addition our consultancy also relies on the following two Fair Work Commission decisions of Commissioner Jennifer Hunt -
• [2021) FWC 5905 Rezaeifard v Green Leave ELC Pty Ltd trading as Green Leaves (13 Septemher 2021).
• [2021] FWC 6125 Manojkumar Pradhan v Amcor Flexibles (Australia) Pty Ltd (14 October 2021).11. Our consultancy draws to your attention where Commissioner Jennifer Hunt states as follows in the decision [2021] FWC 6125 Manojkumar Pradhan v Amcor Flexibles (Australia} Pty Ltd (14 October 2021) -
[110] Section 352 of the Fair Work Act (Cth) prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 352 is the relevant section governing Mr Pradhan's termination as he was employed by a constitutional corporation. .
[111] Mr Pradhan was, as of 22 February 2021, temporarily absent from work because of an injury of a kind prescribed by Fair Work Regulation 3.01. The Commonwealth Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.
[112] Mr Pradhan had only been on unpaid leave for a period of four weeks when the dismissal took effect. The earlier, substantial time away from work had been taken as a mixture of paid personal leave, annual leave and long service leave.
[113] In Rezaeifard v Green Leaves ELC Pty Ltd trading as Green Leaves [2021] FWC 5905; I determined the following, in a similar factual scenario where Mrs Rezaeifard experienced a personal injury and was dismissed while on unpaid leave, a short while after her unpaid leave commenced:
"[107] Employees should not lose their job if they have to take six weeks of/work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
[108] Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Fair Work Act (Cth) not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed.12. Our consultancy draws to your attention where Commissioner Jennifer Hunt states as follows in the decision [2021] FWC 5905 Rezaeifard v Green Leave ELC Pty Ltd trading as Green Leaves (13 September 2021)
[119] I am satisfied Mrs Rezaeifard was informed that the Respondent considered she could not perform the inherent requirements of the role due to her incapacity.
...... ... ... ... ... ... ... ... ... . . . . .. . . . . ..
[122] Mrs Rezaeifard was not dismissed for unsatisfactory work performance; she was dismissed on account of her incapacity to perform the inherent requirements of the role. Accordingly, this criterion is not a relevant consideration.
... ... ... ... ... ... ...... ... ... ... ... ... ...
[l25] Whilst it is not a consideration in this criterion, I will say that the Respondent's failure to properly inform itself of its obligations is disappointing and disturbing given the size of the Respondent and the resources it has available to it.
...... ... ... ... ... .. . ... ... ... ... ... ... ...
[131] Mrs Rezaeifard had just over one year's service with the Respondent.
... ... .... ......... .... ... ... ... ... ... ... ...
[164] I have determined that the Respondent is to pay to Mrs Rezaeifard ten weeks' compensation at the rate of$730.00 per week. I make a deduction of two weeks on account of the notice paid to her on termination. The amount to be paid to Mrs Rezaeifard is eight weeks x $730.00 which is equal to $5,840 gross less tax as required by law.[165] In addition, the Respondent is to pay superannuation at the rate of9.5% (as the Superannuation Guarantee Rate was at the time of the dismissal), being an amount of
$554.80 into Mrs Rezaeifard's superannuation fund.[166] The above amounts are to be paid within 14 days of the date of this decision.
13. Our consultancy also relies on Mr Jarrod James middle age, and hardship factors that would eventuate and coming up to the Northern Territory wet season Christmas period whereby if no ex gratia settlement were to occur, as stated at [69] in the Full Bench Fair Work Commission decision [2013] FWCFB 6191 B, C and D v Australian Postal Corporation trading as Australia Post (28 August 2013), where the Full Bench determined that the dismissal of two Australia Post employees was unfair and harsh, and in this decision the Full Bench states –
"[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors that may make a dismissal harsh notwithstanding the existence of a valid reason also present as a spectrum. The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children. "
14. This Full Bench Fair Work Commission decision was upheld by the Full Court of the Federal Court of Australia in the decision (2014) FCAFC 89 Australian Postal Corporation v D'Rozario (23 July 2014).
15. It is also stated that in the event that the Fair Work Commission makes a decision that an employee does not meet the inherent requirements of the employment role as stated in section 351 (2) (b) of the Fair Work Act (Cth), an employer is still required to pay out notice period as stated in section 117 of the Fair Work Act (Cth) to an employee.
16. In the case of Mr Jarrod James this is three weeks paid notice period as stated in section 117 of the Fair Work Act (Cth).
17. This is confirmed in many case authorities including -
• The Fair Work Commission decision [2013) FWC 8455 Shane McGrath v Transfield Services Pty Ltd (1 November 2013) of Commissioner Geoff Bull.
• The Fair Work Commission decision [2014] FWC 6044 Mr Scott Brown v
Cullen Bay Electrical (8 September 2014) of Commissioner Nicholas Wilson.
• The Fair Work Commission decision [2016] FWC 5983 Nelitha Vather v Serco Australia Pty Ltd (25 August 2016) of Deputy President Matthew O'Callaghan.
• The Fair Work Commission decision [2020] FWC 1084 Anthony Stuckey v Prosegur Australia Pty Limited (2 March 2020) of Commissioner Christopher Platt.
• The Fair Work Commission decision [2020] FWC 3684 Sophia Montgomery v Essential Energy (14 July 2020) of Deputy President Tony Saunders.18. In relation to his decision, Mr Jarrod James has not engaged in serious misconduct as defined in section 12 of the Fair Work Act (Cth) and as per Regulation 1.07 of the Fair Work Act (Cth).
19. In the event an employer mischaracterizes this and sends to Services Australia and Centrelink misinformation stating that an employee has been dismissed for serious misconduct and has been dismissed summarily without notice and this impacts financially to the employee's detriment to be able to get Centrelink payments straight away, which is the fault of an Employer, pursuant to section 387 (h) of the Fair Work Act (Cth), the Fair Work Commission can take this into account and award additional compensation to an employee. This is confirmed in the Fair Work Commission decision [2012] FWA 7069 Karen Jones v Northern Territory Commissioner for Public Employment (17 August 2012).
22. Commissioner David Steel in the Fair Work Commission decision [2012] FWA 7069 Karen Jones v Northern Territory Commissioner for Public Employment (17 August 2012) states as follows -
[71] Further Mrs Jones not only lost her job in the above circumstances but suffered financial hardship as a consequence of having ultimately to move back to Queensland. The evidence also is that the documentation provided by the respondent to Centre/ink after her dismissal was in error and caused further financial issues for the applicant as her access to social security benefits was compromised. "20. It is also our consultancy's assessment that because Veolia have incorrectly not paid Mr Jarrod James his sick leave pursuant to section 97 and 352 of the Fair Work Act (Cth) and has suspended him without pay whilst on sick leave after 12 November 2022, for no less than 2 weeks, that section 387 (h) of the Fair Work Act (Cth), would allow a Fair Work Commissioner to award Mr Jarrod James additional compensation pay because of this significant error by Veolia
The Way Forward.
In order to bring a dignified closure to the employment relationship between Veolia and Mr Jarrod Jan1es without a protracted and adversarial process for both Veolia and Mr Jarrod James in the Fair Work Commission via an alleged unfair dismissal is for the following to occur.
Mr Jarrod James is prepared to put on the table on a without prejudice basis the following which would form part of a voluntary separation employment package.
a) That Veolia will agree to pay Mr Jarrod James 10 weeks' pay which will be inclusive of the notice period pay entitlements as stated in section 117 of the Fair Work Act (Cth).
b) That Veolia will also agree to pay Mr Jarrod James superannuation on these 10 weeks of pay.
c) That, Veolia will also agree to pay to Mr Jarrod James any part of the sick leave to which he is entitled by reason of the medical certificate provided to Veolia on 28 October 2021 which may remain unpaid to for the period 28/10/21 to 25/11/21 inclusive.
d) That Veolia will also agree to pay Mr Jarrod James his accrued annual leave.
e) That Veolia will also agree to provide Mr Jarrod James a written statement of service stating the role and work he performed and his entire length of service and that his employment finished up on account of Mr Jarrod James resigning from his employment.
In addition, both Veolia and Mr Jarrod James would be required to sign off on an agreed deed of settlement which would provide for the following additional benefits to both Mr Jarrod James.
• Mutual Release provisions applying to both Veolia and Mr Jarrod James.
• Mutual non disparagement provisions applying to both Veolia and Mr Jarrod James and also in addition Veolia would make no adverse commentary or no adverse comments verbally or in writing to any future prospective employer(s) of Mr Jarrod James.
• Mutual Confidentiality applying to both Veolia and Mr Jarrod James.
I can be contacted should you have any queries in relation to any of the contents in this correspondence at our Darwin Parap LMPL office on [redacted] and our consultancy looks forward to working positively with Veolia to bring a dignified closure to the employment relationship between Veolia and Mr Jarrod James.
Yours sincerely
Lucio Matarazzo
Industrial Relations Consultant”
On 22 November 2021, Mills Oakley, representatives for the Respondent, responded to Mr Matarazzo’s letter as follows:
“Dear Mr Matarazzo
Jarrod James and Veolia Environmental Services (Australia) Pty Ltd
We act for Veolia Environmental Services (Australia) Pty Ltd (Veolia) and refer to your letter to Richard Hesketh of 21 November 2021.
We have taken instructions, considered your correspondence, and respond as follows:
1. As you have not taken issue with the application of the Northern Territory COVID-19 Directions (No. 55) 2021 (Directions) issued under the Public and Environmental Health Act 2011 (NT) to Mr James, we take that to mean you agree that Mr James is subject to the Directions, a view with which we wholeheartedly agree.
2. Veolia's position has been made abundantly clear to Mr James. This is, in summary:
(a) as a 'worker' within the meaning of the Directions, Mr James was obliged to provide to Veolia evidence of his COVID-19 vaccination status by no later than 12 November 2021, failing which he would be unable to attend the workplace;
(b) Veolia is not permitted, by law, to permit Mr James to attend the workplace and therefore, no matter how willing Mr James may be to work, he cannot work - and this remain the case as from 13 November 2021 whether he is fit for work or unfit for work;
(c) being unable to attend the workplace, and therefore being unable to do his job (as he cannot do his job from home), Mr James was placed on unpaid leave to give him the opportunity to further consider the consequences of his decision.
3. Mr James has made plain his intention to not comply with the Directions or with Veolia's direction, as he is free to do. However, his choice has consequences for his ongoing employment with Veolia.
4. We acknowledge that Mr James has provided Veolia with a medical certificate indicating he is currently 'unfit to continue his usual occupation'. Were Mr James, but for his state of medical unfitness, able to attend for work and do his job, then he would be entitled to paid personal leave under the Fair Work Act 2009 (FW Act). This is because personal leave is intended to support an employee who would otherwise be at work, earning an income, but is unable to do so due to a personal illness or injury. However, as noted above, from 13 November 2021 Mr James is not able to work, and is not permitted to work. Therefore, he is not entitled to paid personal leave during a period when he is not otherwise entitled to payment from his employer. As such, your assertion that Veolia has breached the FW Act by not permitting Mr James to take paid personal leave from 13 November 2021 is incorrect.
5. We also reject your suggestion that, if Veolia terminates Mr James' employment, this will be a breach of s 352 of the FW Act. If Veolia decides to terminate Mr James' employment, it will not be because of a temporary absence due to ill health or injury. Rather, it will be (most likely) because he has failed to comply with the Directions and with a lawful and reasonable instruction of his employer, and/or because he is incapable (by his own choice) of doing his job.
6. The decisions to which you have referred in your letter regarding s 352 of the FW Act are, with respect, not relevant to the present circumstances. Further, your reference to the alleged 'hardship' Mr James may experience is all the more reason why he ought to carefully consider complying with the Directions and Veolia's direction. If he chooses not to comply and is therefore precluded from attending for work, then he bears the consequences of that decision, including any hardships which may befall him.
7. Should Mr James persist in his refusal to comply with Veolia's direction, which is both lawful and reasonable in light of the Directions and in light of Veolia's own obligations to manage the health and safety risks of COVID-19, contrary to your assertion, this will amount to 'serious misconduct' under the FW Act. In this regard, we refer you to Regulation 1.07(3)(d) of the Fair Work Regulations 2009. Accordingly, under the terms of Mr James' employment, Veolia would be quite within its rights to dismiss Mr James summarily, without any notice should it so choose.
8. In the alternative, should Veolia terminate Mr James' employment due to his inability to do his job (because he cannot attend the workplace due to his vaccination status), he would be entitled to notice or payment in lieu thereof.
9. Veolia has not yet made a decision regarding Mr James' ongoing employment. Mr James still has time to demonstrate compliance with Veolia's direction, and with the Directions, and Veolia would welcome such compliance. Veolia has been very patient with Mr James but, for operational reasons, it cannot place Mr James on unpaid leave indefinitely.
10. For the above reasons, your offer of a proposed voluntary separation employment package is rejected. If Mr James wishes to resign from his employment, that is a matter for him. He will need to give the required period of notice and Veolia may elect to pay Mr James in lieu of that notice period. He will, of course, be paid out any accrued but untaken annual leave.
11. If Mr James wishes to continue working with Veolia, he is aware of what needs to occur. The decision is his.
Yours sincerely
Samantha Maddern
Partner”
The Applicant was issued a Show Cause letter on 23 November 2021:
“Dear Jarrod
Show cause - proposed termination of employment
I refer to our letter of 16 November 2021 in which Veolia issued you with a lawful and reasonable direction to provide to your Veolia Leader by 12:00 noon on Monday 22 November 2021:
(a) evidence that you have received your first COVID-19 vaccine dose; and
(b) evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or
(c) certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of any COVID-19 vaccine due to a medical contraindication or an acute medical illness.You have failed to comply with this lawful and reasonable direction.
As foreshadowed in our letter of 16 November 2021, this failure is regarded as conduct warranting disciplinary action and it also means you remain unable to attend the workplace to perform your job.
Veolia has now made the preliminary decision to terminate your employment for serious misconduct constituted by your failure to comply with a lawful and reasonable direction and /or on the ground that you are not ready, willing and able to perform your duties in accordance with your obligations as an employee.
Before a final decision is made, Veolia provides you with one final opportunity to provide any additional factors or information that you have not already raised which you believe Veolia should consider before making a final decision.
Your response should be in writing and may be emailed to Veolia's National Workplace Relations Manager, Richard Hesketh, at [redacted]. If you wish to respond, your response must be received by 5pm on 25 November 2021.
If you choose not to respond, Veolia will finalise its decision based on the information at hand.
If you require further support, Veolia makes available free and confidential counselling services to employees. These services may be contacted on [redacted].
Yours sincerely
Anthony Roderick
Chief Operating Officer – Waste”
(My emphasis)
The Applicant responded to the Show Cause letter, by way of letter to Mr Hesketh on 25 November 2021:
“Dear Mr Hesketh
Re: Your Proposed Termination of My Employment Following NT Government's Covid Vaccination Mandate
By this correspondence I respond, principally, to Mr Roderick's letter of 23 November 2021 but will also address some remarks in reply to the company's solicitor's letter of 22 November 2021 addressed to my industrial advocate Mr Matarazzo.
Open Correspondence
This correspondence is not intended to be "without prejudice" as, perhaps, you may argue was the case in respect of the correspondence written to you by my industrial advocate. I do not concede that Mr Matarazzo's correspondence was "without prejudice" but let there be no doubt, this is most certainly an open letter and I reserve the right to produce it to the Fair Work Commission as part of any future unfair dismissal litigation together with any other correspondence between the parties.
Mr Roderick's Letter
It is not correct that I have failed to comply with a lawful and reasonable direction. The direction was neither lawful nor reasonable. I have explained my basis for making that assertion in my letter of 24 October addressed to the Chief Executive Officer, in my letter to you of 1 November and through the agency of Mr Matarazzo in his letter of 21 November (collectively referred to as "my correspondence").
Preliminary Decision to Terminate
Mr Roderick's letter makes clear that a preliminary decision to terminate my employment for serious misconduct has already been made. I ask for that decision be reversed and that we enter into voluntary discussions in an attempt to arrive at a proper outcome for the unfortunate situation in which the NT government's mandate has placed both parties.
There are a number of choices that could have been made which would have served the interests of both parties. For example, I could have been assigned to other duties. Moreover, even now, it is not too late for the parties to come to discuss these matters and come to a reasonable compromise as to these difficulties in our relationship caused by external pressures.
Should you reconsider your position I am certainly available for appropriate discussions.
Unfair Dismissal
If however the company confirms your preliminary decision, to do so will constitute an unfair dismissal. Please take notice, in that event, I will certainly be instituting Fair Work Commission proceedings for compensation attributable to that decision.
Constructive Dismissal
Lest there be any misunderstanding, should the company choose to rely on the alternative approach to our problem; that is, to direct me to "stand aside on unpaid leave" (or whatever other jargon might be employed), that will constitute constructive dismissal and also be a foundation for me to institute proceedings in the Fair Work Commission.
My employment contract of 10 December 2018 makes no mention of that possibility. Nor is it open to the company, to give any such direction by authority of the common law operation of my employment contract. If the company wishes to put my employment into "cold storage" it can only do so on full pay. To adopt any course by which I am deprived of my agreed wages, will constitute constructive dismissal regardless of the terminology employed in the process.
Mills Oakley Letter
I have sighted a letter written by your solicitor to my industrial advocate dated 22 November 2021. Please inform your solicitor that I cannot afford to continue retaining the services of Mr Matarazzo and therefore further correspondence with him is unnecessary. Moreover, I would like it noted that I do not concede the accuracy of any of the assertions, allegations and assumptions made in or implied by that letter.
In particular, to avoid any doubt, I do stress that the paragraph numbered 1 in that letter is completely misconceived. There is no basis on which to say that I am necessarily subject to the Directions. Equally importantly, there is no basis to say that my industrial advocate (or myself) agreed that I am subject to the Directions.
It was, and remains, open to Veolia to accept the interpretation of the Directions expressed by me in my correspondence. Should the company do that, in the course of a proper conciliation between us, no doubt appropriate arrangements could be made and agreed to protect the company from suppose liability for alleged failure to comply with the Directions.
Moreover, even if it were true that the Directions apply to me, a less unfair approach by Veolia could have the result of me being removed from the operation of the Directions by reassignment to other duties.
Serious Misconduct
I am astonished that the company would even contemplate using the terminology "serious misconduct" in any proposal to terminate my appointment. Should the company maintain that line I can only say that it will fortify my unfair dismissal litigation.
How dare you suggest that my conduct is misconduct let alone serious misconduct. My conduct is consistent with my human rights, does not involve any disloyalty to the company and is in no way a challenge to the interests of the company. It is a function of the political crisis which prevails as a result of the Covid plague afflicting our society and not something in which I have played any role.
For the company to tarnish my reputation with the words "serious misconduct" will be most unfair in the extreme and will be one of the foundations of my litigation against the company in that respect.
Leave Entitlements
I take it from your solicitor's letter that my entitlement to "personal" leave (I call it sick leave) and Annual Leave is not a contentious matter. In the circumstances, would you be so kind as to provide me with a reconciliation of my entitlements and usage of those entitlements so that, in the event that we part company, we can at least do so with an agreed financial settlement in respect of these entitlements.
Further Support
Please stop offering me counselling. It is offensive.
Yours Faithfully
Jarrod B James”
Mr Hesketh sent an email on the afternoon of 25 November 2021, which was sent to the Applicant and to Mr Walker as follows:
“We will need to update the termination letter to reflect the fact that he has indeed responded to the show cause letter.
Nothing in this response changes my mind. We terminate tomorrow as planned.
Richard Hesketh
Workplace Relations Manager”
The COO terminated the Applicant’s employment by way of written letter on 26 November 2021:
“Dear Jarrod
Termination of employment
I refer to our letter of 23 November 2021 in which you were asked to show cause as to why your employment should not be terminated.
Veolia has considered your response letter of 25 November 2021, along with your previous correspondence and that of your former representative, Mr Matarazzo.
Veolia does not share your view that the Northern Territory COVID-19 Directions (No. 55) 2021 (Directions) do not apply to you. As such, you were obliged to receive your first COVID 19 vaccine in order to continue working from 13 November 2021 (or provide evidence of a valid exemption). You have been given reasonable notice of this obligation and a sufficient period in which to comply, but have elected not to.
After careful consideration of all the relevant circumstances, including the Directions, your role with Veolia, the fact that you cannot perform your current duties and responsibilities from home, the fact that there is no other role into which you can be redeployed that does not require you to be vaccinated, and Veolia’s workplace health and safety obligations and responsibilities, the decision has been made to terminate your employment with Veolia effective on and from 26 November 2021.
This decision has been made because, despite repeated requests and sufficient time in which to comply, you have failed to comply with Veolia’s lawful and reasonable direction and because, due to your unvaccinated status, for the reasons previously explained to you, you are unable to attend for work and perform your job.
While your failure to comply with a lawful and reasonable direction of your employer does meet the definition of serious misconduct under the Fair Work Regulations 2009, and would justify summary dismissal, Veolia will not terminate your employment summarily but will pay you in lieu of notice.
Veolia will arrange for payment to you of all outstanding amounts owed to you including any outstanding wages and accrued statutory entitlements and payment in lieu of your notice period in accordance with your employment agreement. These amounts will be paid into your nominated account.
You are required to return all Company property in your possession. Please contact Mr Nick Walker by 12.00 noon on Monday 29 November to coordinate this.
Veolia will provide you with a payroll calculation statement and an employment separation certificate (if requested) via mail, once payment has been transmitted. You are reminded that your obligations regarding Veolia’s confidential information continue after your employment ends and Veolia expects you to comply with these obligations.
Yours sincerely
Anthony Roderick
Chief Operating Officer – Waste”
The matter was listed for Hearing by Microsoft Teams on 4 May 2022. Mr Geoffrey James, the Applicant’s father, a well known and respected legal practitioner in the NT appeared as the representative for the Applicant. Mr Leigh Howard, Counsel, was granted leave to appear for the Respondent.
The Applicant appeared and gave evidence on his own behalf. The following persons appeared and gave evidence for the Respondent:
Mr Richard Hesketh, Workplace Relations Manager; and
Mr Nicholas Walker, State Manager Northern Territory.
At the parties’ request, the parties filed written closing submissions following receipt and review of the transcript of the 4 May 2022 proceedings.
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
The Respondent submitted in any event, the evidence demonstrates that the Respondent did consider redeployment and other alternatives to dismissal. It submitted that working from home or remotely was not viable as the nature of the Applicant’s job required him to drive a truck and attend multiple locations. Further, temporary redeployment into a different role (not subject to the Directions) was not an available option at the time.
Notification of the reason for dismissal and opportunity to respond
The Respondent submitted that its exhaustive consultation and show cause process ensured that the Applicant was notified of the Respondent’s reasons for his dismissal, and the Applicant was given an opportunity to respond. While the Applicant has made complaints about the Respondent’s failure to accept his grievances, the Respondent submitted that it had no obligation to accept the veracity of those grievances. The Respondent submitted that at all times, it responded appropriately to the Applicant’s correspondence.
Any refusal of a support person
The Respondent submitted that the opportunity to have a face-to-face meeting, with a support person, was not available to the parties due to the effect of the Directions and therefore this should be considered a neutral factor.
Reasons relating to performance
The Respondent submitted that the dismissal did not relate to performance.
Size of the employer’s business
The Respondent submitted that it is not a small business employer, and as such, sections 387(f) and (g) of the FW Act do not arise.
Additional matters
The Respondent submitted that the Commission should have regard to the following additional matters:
(a)It provided Mr James with a payment in lieu of notice, despite concluding that Mr James’ conduct amounted to serious misconduct. The decision to do so mitigated the effects of the dismissal and counts towards the conclusion that Veolia acted fairly.
(b)Veolia engaged with Mr James over the period between 19 October 2021 and 26 November 2021. It did all it could to encourage Mr James to comply with the Directions. It offered Mr James EAP throughout as a means of support. This is not a case of an employer acting hastily or without due consideration of the circumstances facing the employee.
(c)Veolia acted to not only ensure that it complied with its own obligations under the Directions, but as a means of ensuring the health and safety of the Veolia staff in the Territory. The health and safety of the Veolia workforce in an overall sense is an important consideration (section 387(a)). Veolia’s decision-making in this regard, and its consequences for Mr James, adds to the conclusion that the dismissal was fair.
For all of the above reasons, the Respondent submitted that the Application should be dismissed.
Written Closing Submissions
Applicant’s Closing Submissions
The Applicant submitted: “It is acknowledged, and well understood, that this tribunal does not have jurisdiction to make determinations of law.” However, the Applicant submitted that it would be wrong to contend that this tribunal ignores law, and therefore the Commission should take into account the implications of a debate over what constitutes valid law. The Applicant submitted that the Commission should make an assessment of whether the Respondent behaved reasonably and fairly “in the face of a controversy regarding a provision of law crucial to [the employment] relationship”.
As to the Respondent’s reliance on CHO Direction No. 55 being a “valid and binding law that gave the employer no lawful choice other than to require the worker to be vaccinated on pain of dismissal for failure to comply”, the Applicant submitted this is untrue. The Applicant submitted that any diligent legal review of the CHO Directions results in a conclusion that they were ‘ultra vires’. The Applicant submitted:
“No content in section 52 contemplates power to make laws regarding non-consensual medical procedures (such as unwanted immunisation) nor any similar authority with respect to industrial relations (such as defining the right of workers to attend their workplaces and earn their living).”
The Applicant cited the decision in Coco v The Queen (1994) 179 CLR 427, where at 437 the High Court determined that:
“(t)he courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”
The Applicant submitted that the effect of the Directions is to regulate the ability of workers to attend the workplace to perform work activities and to sanction workers, to an extent “amounting to coercion” on the basis of their immunisation status. The Applicant submitted that the rights to work and bodily autonomy are fundamental rights, and the legislature could not have intended to give to the CHO unfettered power to make laws which forbid workers from continuing to work or which penalise workers who decline vaccination.
The Applicant submitted that, moreover, events in the Northern Territory have confirmed such an obvious interpretation of the enabling provision s.52(1). The Applicant submitted that, faced with litigation on this very point set down for hearing before the NT Supreme Court on 14 June 2022, the Northern Territory government has “conceded that reality”. The Applicant relied here on the Public and Environmental Health Legislation Amendment Bill 2022 – Serial 45 Amendment Schedule No. 45GOV, which passed through the Legislative Assembly of the Northern Territory on 19 May 2022. The Applicant submitted that Bill inserted new Part 10A into the Act, and “is a clear legislative admission of the invalidity of the Directions”.
The Applicant submitted that a new s.133C was inserted into the Act in the following terms:
“133C Validated directions
(1) The directions (and their provisions) given or purported to have been given under section 52 by the Chief Health Officer on 13 October 2021 entitled COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace:
(a) were, and are taken to always have been, valid under this Act; and
(b) had, and are taken to always have had, full force and effect on and from when they were given by the Chief Health Officer until 22 April 2022.”
The Applicant submitted that he raised the issue of validity of the CHO Directions in his letter to the Respondent on 24 October 2021. The Applicant noted that the Respondent’s reply was: “it is not Veolia’s role or responsibility to consider, let alone question, the lawfulness of the Directions made pursuant to the PEH Act”. The Applicant submitted that it was unfair and unreasonable for the Respondent to fail to examine the issue, and submitted that this response by the Respondent was an acknowledgement that the company at no time applied its mind to the issue of validity of the CHO Directions.
The Applicant submitted that the Respondent should have recognised and considered the devastation that his termination would cause him. The Applicant submitted it was unfair and unreasonable of the Respondent to:
“• Refrain from making a genuine assessment of the probability of the worker’s viewpoint being correct and to react accordingly;
• Ignore the extensive technical points made by the worker in his unsuccessful attempts to influence the employer against dismissal;
• Make no effort to engage the worker in any dialogue regarding the differences between the employer and the worker; and
• In the entirety of its communications with the worker, simply keep repeating its position – effectively “it’s the law” – and successively revisiting its coercive approach toward the worker!”
Further, as to the evidence by the Respondent’s witnesses that there was no basis by which they could guarantee protection of vulnerable people if the Applicant’s employment were to continue, the Applicant responded that this is a generalisation without credibility. The Applicant submitted there was no consideration of reasonable adjustments under direction 12 and the Respondent misunderstood the responsibilities imposed by the Directions “(if valid)”.
The Applicant reiterated his submission that the Directions refer to a worker ‘likely’ to come into contact with a vulnerable person. The Applicant submitted that for the Respondent to follow a process aimed at “achieving a guarantee” was unfair, unreasonable and not in accordance with the requirements of the Directions. The Applicant submitted that the Respondent’s obligation of fairness and reasonableness required them to examine likelihoods in accordance with the requirements of the Directions “not possibilities!”.
Further, as to the evidence of the Respondent and its witnesses regarding ‘contact’, the Applicant submitted that the Respondent has relied on an incorrect interpretation. The Applicant submitted that the interpretation should not be any form of encounter between a worker and some other person, rather it should be in the context of communication of diseases. The Applicant reiterated his submission that a “driver who is properly motivated and attuned to social responsibility, may raise his hand in the signal of “halt” and say, “Please don’t come any closer; I do not want to be in contact with you because of the Covid precautions.””
The Applicant made further submissions as to ‘medical contact’, including the meaning of ‘touching’ and ‘physical contact’ for those purposes. The Applicant submitted that the Respondent’s drivers might come into ‘medical contact’ with another person:
“if they both slipped and fell colliding with each other. Maybe, each being unaware of the presence of the other, they could inadvertently walk into each other whilst not looking where they were going. There are no other possibilities that I can think of.”
The Applicant maintained that he was “well-informed on the medical implications of societal interaction in the era of the pandemic”, and submitted there is nothing in the evidence that would justify the conclusions that:
· any such medical contact might be likely;
· nor if it occurred, that the other party to the encounter would necessarily be “a vulnerable person”.
The Applicant submitted that the Respondent was “clumsy and thoughtless” in applying the ‘distant contact’ as opposed to ‘medical contact’ interpretation of the requirements of the CHO Directions, which the Applicant submitted was at great prejudice to him. The Applicant maintained that it was unreasonable and unfair for the Respondent to have:
· Refrained from giving any constructive thought to making reasonable adjustments to the worker’s duties, pursuant to direction;
· Nor entertained any possibility of the worker being eligible to participate in the employer’s workforce as a result of the exceptions specified in direction.
The Applicant made further submissions that the Respondent’s work did not fit within the meaning of “operation or maintenance of essential infrastructure or essential logistics in the Territory” for the purposes of the CHO Directions.
The Applicant submitted that he had sent a “constructive, polite, technically expressed and correct letter” to the Respondent on 24 October 2021 and yet the Respondent “made no attempt to engage, follow-up, reason through, debate with the worker or otherwise deal with the worker’s proper contentions in respect of such matters”. The Applicant submitted that the Respondent’s failure to engage with him regarding the reasonableness of the CHO Direction was “unreasonable, unfair and an abuse by the employer of its superior power!”.
The Applicant maintained that the CHO Directions provided scope for the employer to make reasonable adjustments to accommodate him, however the Respondent chose not to. The Applicant submitted that his offer to accept modification of his duties in his 24 October 2021 letter was ignored by the Respondent. The Applicant submitted:
“The belated attempts by the employer’s witnesses to earnestly declare, in evidence, that alternative roles were considered but there were none available are not convincing and certainly not exculpatory. Indeed they serve to illustrate the employer’s complete disinterest in the welfare of the worker. The worker did not ask to be deployed to an alternative role. The worker proposed that his duties be examined and modified.”
The Applicant submitted that he was not asking for an ‘alternative role’ and only requested a variation of his duties that would “alleviate the likelihood of coming into contact with a vulnerable person”. The Applicant submitted:
“To cease deploying him on defence base work (duly replaced by a vaccinated driver) and to assign him to general work, with an agreement to the effect that the worker would ensure that he kept his distance from other members of the public were all that was required to achieve “reasonable adjustments to accommodate” the worker.”
The Applicant submitted his proposal for variations to his role was “a clear, cogent, and reasonable request for reasonable adjustments in terms of direction 12 [of CHO Direction No. 55], yet it was completely ignored”. The Applicant maintained this lack of response was unfair and unreasonable, and could not be “retrospectively justified by protestations that consideration had been given to the availability of alternative roles”.
For all of these reasons, the Applicant maintained that his dismissal was unfair and unreasonable.
Respondent’s Closing Submissions
As to the Applicant’s reliance on definitions to make the case that CHO Direction No. 55 did not apply to his employment, the Respondent submitted that is an erroneous approach. The Respondent submitted that the extensive cross-examination of witnesses about dictionary definitions was a pointless exercise. The Respondent relied on the High Court decision in Thiess v Collector of Customs (2014) 250 CLR 664, in which it was stated:
“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”[8]
(Respondent’s emphasis)
The Respondent submitted that CHO Direction No. 55, being a government regulation, is directed at practical application within industry, and as such, interpretation needs to produce an outcome that ensures the Directions can be practically applied.[9] The Respondent submitted that the individualistic, rights-based interpretation as asserted by the Applicant cannot be applied. The Respondent submitted that construction of the Directions must give effect to the legislative purpose of protecting against risk of transmission of the Delta variant that had reached Australia’s shores. The Respondent noted this variant was more severe, 60% more transmissible, and was airborne.[10]
Veolia’s application of the Directions to the Applicant’s employment
The Respondent submitted that it “studied the Directions in light of that risk, and in light of the expectation that the Directions had to be given practical effect” and concluded that its waste collection workers were required to comply with the Directions because they could have come within any of the four definitions of “worker” at paragraph 4 of the Directions. However, the Respondent noted that the most obvious and applicable was at 4(a) of the Directions, because its waste collection workers were “likely to come into contact with a vulnerable person”.
The Respondent submitted that this conclusion was “unassailable in light what Mr James confirmed in cross examination”, which included the following:
“(a) Mr James confirmed that, over a week, he would attend approximately 240 sites to collect approximately 650 receptacles.
(b) He confirmed his daily run involved attending the built up and densely populated areas of Darwin, including the CBD, Palmerston, Northern Suburbs and Department of Defence bases.
(c) He confirmed bin collection involves attending a public footpath or a dedicated bin area inside the clients’ premises. He confirmed he would on occasion need to attend the client gate or reception area, and have contact with clients to obtain assistance to locate bins. He confirmed he would on occasion go into client offices, grab keys off clients, and hand clients dockets for signature.
(d) He confirmed his day-to-day duties involved interaction with Veolia’s employees at the start of his shift at Berrimah, and at the end of his shift at the Shoal Bay waste management facility.
(e) He confirmed this interaction was with other waste collection workers, his manager, and Veolia’s administrative staff.
(f) He confirmed this interaction included attending the crib/tea room at shift sign on and during smoko. He confirmed it included a weekly safety meeting which all waste collection workers were required to attend. “So to summarise, there would be your manager, your truck drivers and the admin staff that you would, from time to time, depending on necessity, interact with in your job - Yes.”
(g) Most importantly, Mr James confirmed the depth of his daily interaction with the Darwin public. He confirmed his daily run required him to attend hospitality venues, hotels, shopping plazas, shops within such plazas, indigenous cooperatives, childcare centres, the Darwin Airport district, youth community centres, apartment complexes, health services, kindergartens, hostels, markets and medical GP practices.”[11]
The Respondent submitted that on the Applicant’s own evidence, the Applicant was likely to come into contact with at least one vulnerable person on any given day, every day, whilst the Directions applied. The Respondent noted that ‘vulnerable persons’ are defined in paragraph 3 of CHO Direction No. 55 to include children under 12 years of age, persons unable to be vaccinated, indigenous persons, and those at risk of severe illness from COVID-19. The Respondent submitted that the Applicant’s movement around the community makes contact with such people a given, whether it be via contact on a footpath, at populated establishments he was required to visit, a client representative, or a colleague.
The Respondent submitted further and in the alternative:
(a)Paragraph 4(b) of the Directions: Mr James was just as likely to come into contact with a person (e.g. a patient at a medical GP practice) or a thing (e.g. a bin that contained disposed PPE) that posed a risk of COVID-19 infection.
(b)Paragraph 4(c) of the Directions: Mr James’ workplace – being the whole of Darwin he attended on a daily basis including, for example, health services and GP clinics – posed a high risk of infection of COVID-19.
(c)Paragraph 4(d) of the Directions: Mr James’ job was necessary for the operation of essential logistics – being the transport of waste from client to facility. As Mr Hesketh put it: “the collection of waste and transporting it to a resource recovery facility, that's transporting a good from point A to point B. That's transporting items from point A to point B. For me that's logistics”.[12]
The Respondent concluded that the Applicant’s “piecemeal, and incomplete” reliance on dictionary definitions should be rejected. The Respondent submitted that the Applicant’s interpretation undermines the purpose and effect of CHO Direction No. 55.
No reasonable adjustments to Mr James’ position could be made
The Respondent submitted that the Applicant’s submissions “attempt to pass off that he sought an adjustment to his daily run so as to avoid having to service the Department of Defence contract (which comprises about 50-55% of Veolia’s Northern Territory work)”. The Respondent submitted this is false and the Applicant did not offer such an adjustment in his correspondence.
Further, the Respondent submitted that not only did it impose a mandatory vaccination policy, so did many of its clients. The Respondent submitted that:
“In the hypothetical scenario where the Directions did not apply to Mr James, the contractual requirements imposed by Veolia’s clients nonetheless made him unable to perform his job unvaccinated”.
The Respondent submitted it was not possible for it to ‘manufacture’ a daily run that would have allowed the Applicant to avoid those clients with a mandatory vaccination policy, nor avoid his contact with the public generally. It submitted this was for two reasons:
(a)For reasons addressed above, Mr James remained liable to come into contact with the Darwin public no matter how that daily run was to be designed; and
(b)It made no logistical or operational sense to design a daily run in this way – daily runs are designed around suburban areas to optimise efficiency. 100 per cent of daily runs involved servicing the Department of Defence contract. Designing a daily run in a way that avoided this client (and other clients with the same requirements) “would be very much to the detriment of the operations and the customer.”
The Respondent submitted that the Applicant’s commitment to maintain social distancing while working cannot be considered a reasonable adjustment for the purposes of the Directions, for the following reasons:
(a)Such a conclusion undermines the purpose and effect of the Directions. Most (if not all) workers caught by the Directions could have given such a commitment so as to avoid the Directions. The evident intent of the Directions was to require vaccination because social distancing was an inadequate control measure to mitigate transmission of the airborne Delta variant.
(b)It could not be a reasonable adjustment because, ultimately, neither Mr James nor Veolia have the ability to control the manner in which Mr James might come into contact with vulnerable persons. In any given case, the extent of that contact will depend on the decision making of the vulnerable person in question.
(c)It presupposes that Veolia’s clients were content to be serviced by Mr James unvaccinated. As mentioned, that was not the case for a number of those clients, and permitting Mr James to service those clients unvaccinated would have been in breach of the terms of trade with those clients.
The Respondent relied on the evidence of both Mr Hesketh and Mr Walker that they considered reasonable adjustments in the form of redeploying the Applicant, however, no alternative roles which did not require compliance with the Directions were suitable to his skillset.[13] The Respondent submitted there is no reason to doubt the correctness of this evidence, and nothing in cross examination of these witnesses cast doubt over it.
For these reasons, the Respondent maintained that the Application should be dismissed.
As an additional matter, the Respondent noted that recent Commission decisions have confirmed that no consultation obligation on the employer arose when similar mandatory vaccination directions were promulgated by government in other states and territories.[14]
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)[15] 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)[16] 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”.
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:[17]
“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…”.
In Rode v Burwood Mitsubishi,[18] 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)[19] 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.”
I do not accept the proposition that CHO Direction No. 55 does not apply to the Applicant. I accept the evidence of Mr Walker that the Respondent has in its employment a “yard hand” who has identified himself as an Indigenous Australian. This employee is identified as a vulnerable person under CHO Direction No. 55. The Applicant shares the same bathroom and crib room facilities with all of his colleagues at the Depot. Further, on the basis that the Applicant was required, on occasions, to get out of his truck and enter the premises of the Respondent’s clients and interact with the client’s employees, there was a chance that one of those employees could also have been identified as a vulnerable person. As a result, I am satisfied and find that the Applicant was likely to come into contact with a vulnerable person in the course of his employment.
Having found that CHO Direction No. 55 applied to the Applicant, the Respondent had an obligation to enforce the Direction. The Applicant exercised his right not to comply with the Direction. I 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
It is not in dispute that the Applicant was provided an opportunity to respond to the reasons for his termination. In fact, with reference to the correspondence extracted at paragraphs [8]-[23] of this decision, the Applicant wrote to the Respondent on 5 occasions which the Respondent acknowledged on each occasion. I am satisfied that the Applicant had ample opportunity to respond to the matters leading to his termination, and that the Respondent took each of the Applicant’s correspondences into account in making its final determination.
I agree with the Respondent that it engaged in a “exhaustive process of consultation and correspondence” with the Applicant prior to 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
The Applicant was not dismissed for unsatisfactory performance.
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 large employer.
Section 387(h) – Any other matters
It is not in dispute that the Department of Defence is the major client of the Respondent (approximately 55% of all work). It is not in dispute that the Department of Defence required all visitors to its sites to be compliant with CHO Direction No. 55. In response to the Applicant’s claim that the Respondent should have modified the Applicant’s work to exclude the requirement for the Applicant to attend a Defence site, I accept Mr Walker’s testimony that such a proposition was not possible or logistically feasible. I accept the evidence that the runs are set up on a geographical basis to maximise efficiency. It would make no economic sense to have the Respondent’s trucks crisscross the city passing each other. Such a practice would waste fuel and time.
I also note that it was not compulsory for the Respondent to make changes to the Applicant’s employment situation in order to satisfy CHO Direction No. 55. At paragraph 12, the Direction provides:
“Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7”.
(My emphasis)
The Applicant has raised a number of issues pertaining to subordinate legislation, breach of contract, etc, which do not fall within the jurisdiction of the Commission and the FW Act. Contrary to the Applicant’s submissions that the Commission should take into account what constitutes valid law, I adopt the advice of Beech-Jones CJ in Kassam v Hazzard[20] and will not stray with my personal views or commentary into the jurisdiction of the Courts.
I agree with the submission of the Respondent that the work undertaken by the Respondent can be described as essential logistics. The collection and removal of waste product may not be considered by everyone as an essential service on a daily or weekly basis, but certainly fits that category in relation to a timeframe of more than a week when one considers the possible health consequences of waste not being removed from businesses on a regular basis.
I do not accept that it was the Respondent’s responsibility to answer detailed questions about the effectiveness and safety of the vaccines. The approved COVID-19 vaccines have been through a process undertaken by Australian Technical Advisory Group on Immunisation. The Respondent recommended that the Applicant raise his questions with an appropriately qualified medical practitioner. I am satisfied that this was the correct advice from the Respondent.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant on the basis that CHO Direction No. 55 applied to the Applicant’s employment with the Respondent and that the Applicant exercised his right not to comply with this Direction. The Respondent, however, was required to comply with CHO Direction No. 55 or face significant pecuniary penalties.
I am satisfied that the Applicant was afforded procedural fairness in the process that led up to the Applicant’s termination. I am satisfied that the Respondent provided reply correspondence, where appropriate, to the Applicant.
In my consideration of all matters pertaining to section 387(b) – (h) of the FW Act, I am satisfied that no issue has been identified which would make the Applicant’s termination harsh, unjust or unreasonable.
I am satisfied and find that the Applicant has received his statutory entitlement to a fair go.
I find that the Applicant has not been unfairly dismissed.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 684-685; Webb v RMIT University [2011] FWAFB 8336, [6]-[7]; Pettifer v MODEC Management Services (2016) 261 IR 439, [26]-[31]; Callychurn v Australian and New Zealand Banking Group[2016] FWC 526, [71] (upheld on appeal: [2016] FWCFB 1944).
[4] Gottwald v Downer EDI Rail Pty Ltd[2007] AIRC 969, [102]; Hudson v Woolworths[2007] AIRC 912, [75].
[5] J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292, [22].
[6] Miller v University of New South Wales (2003) 132 FCR 147, [13]; Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32]; He v Lewin (2004) 137 FCR 266, [15].
[7] Roman v Mercy Hospitals Victoria Ltd[2022] FWC 711, [40].
[8] Thiess v Collector of Customs (2014) 250 CLR 664, [23].
[9] Gill v Donald Humberstone Co Ltd [1963] 1 WLR 929, 934; Australian Tea Tree Oil Research Institute v Industry Research & Development Board (2002) 124 FCR 316, [37]-[38]; Kozel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 181, [15]; Comcare v Lilley (2013) 216 FCR 214, [71]; Lendlease v ABCC (No 2) [2022] FCA 192 at [68], [122] and [125].
[10] Respondent provided: See for example Lu, “Covid Delta variant ‘is in the air you breathe’: What you need to know about Sydney outbreak strain” The Guardian (24 June 2021, online).
[11] Transcript at PN80, 49-53, 67, 68, 70-71, 187, 146-149, 150-154, 147-154, 47, 145, 164, 43, 147, 163, 47, 753, 791, 58, 161-162, 165, 85-87, 89, 118, 120, 93-94, 96-97, 111-112, 140, 113, 117-120, 121-122, 123-124, 132-133, 135, 136, 138-139.
[12] Transcript at PN628. The Respondent noted that the definition of “logistics” in paragraph 4 of Schedule 1 [DCB p167] is non-exhaustive, and as such, Veolia applied the natural and purposive meaning of that phrase.
[13] Transcript at PN888-PN892.
[14] The Respondent cited: Roy-Chowdry v Ivanhoe Girls Grammar [2022] FWC 849, [102]; Brasell-Dellow v Queensland [2021] QIRC 356, [101]. There is no “decision” made by an employer that relates to change in the “organisation” - rather the decisions to issue mandatory vaccination directions were made by the Chief Health Officers of the States and Territories. The question may be different if an employer formulated its own mandatory vaccination policy absent a public health direction: see CFMMEU v Mr Arthur Coal[2021] FWCFB 6059.
[15] (1995) 185 CLR 410.
[16] (1998) 84 IR 1.
[17] (1995) 62 IR 371.
[18] PR4471.
[19] (1998) 84 FCR 483
[20] [2021] NSWSC 1320 at [68].
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