Mr John William Lisle v Nbn Co Ltd T/A nbn - [2022] FWC 1854

[2022] FWC 1854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr John William Lisle
v

NBN Co Ltd T/A nbn

(U2022/2455)

COMMISSIONER RIORDAN

SYDNEY, 29 JULY 2022

Application for an unfair dismissal remedy

On 25 February 2022, Mr John Lisle (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 NBN Co Ltd T/A nbn (the Respondent) on 21 February 2022 due to his inability to perform the inherent requirements of his role.

The Applicant claims that he was first employed by the Respondent on 11 September 2013. At the time of his dismissal, the Applicant was employed by the Respondent in the role of Senior Field Technician Specialist in the Northern Territory.

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 specified 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.

(My emphasis)

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

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

On 13 October 2021, Mr David Campbell, Area Manager, NT & SA Operations for the Respondent, wrote to the Applicant and other staff members with the following:

“Guys

Im sure you’ve already heard but if you havnt
From Nov 13 the vaccine will be mandatory in NT
I hear anything from nbn ill let you know
Thanks
David Campbell
Area Manager | NT & SA South Operations”

The Applicant responded to Mr Campbell on the same date, stating:

“Hi Dave,

Firstly, please let me state that I have no wish to resign from my position at nbn.
I acknowledge the NT Governments Commerce Law Offer to provide a Vaccine and in relation to those terms, I conditionally accept.
However, I will not be participating in the human trial of an Emergency Use Authorisation substance where I am not able to provide my informed consent;
·   Of the ingredients known publicly, Human Embryonic Cell Lines are included and I decline on religious grounds
·   There are other ingredients which are unknown and undocumented and I cannot complete an assessment of the potential for negative effects via interaction with other medications
·   There is no long term data on safety or effectiveness
·   I have a history of allergic reactions which have caused me to suffer anaphylaxis
·   Use of experimental drugs will void my life insurance policy

I would like to draw nbn’s attention to FairWork Australia’s recently published decision, which I have attached, as nbn is now potentially a 3rd party to this matter of Commerce between myself and the NT Government.
If nbn joins with the NT Government in this matter the following will be relevant;
My conditions are as follows;
·   I require the signature of an individual who personally accepts all liability for any adverse reaction, side effect, disease, disability or ailment (including death) that I may experience, to compensate me or my beneficiaries for 1. any loss or expense as a result of incapacitation, pain or suffering 2. in the event of my death, pay my beneficiaries the full value of my current life Insurance policy 3. Maintain my current salary and allowances until I am fit to return to work or I reach retirement age with no loss of leave or other entitlements;
·   To be provided with a full list of ingredients of the substance in question along with long term data on safety and effects.
·   To be provided with proof that the substance contains no aborted foetal or other human cellular matter.

Notice of Liability
My conditions are to be met within 14 business days or I shall seek damages/compensation from the NT Government and from nbn.
Rate: $1,500.00 per day
John Lisle
Senior Field Technical Specialist”

Ms Sally Kincaid, Chief People & Culture Officer for the Respondent wrote to the Applicant on 3 November 2021 regarding the CHO Directions:
“Dear John

Further to recent communications to nbn staff regarding vaccinations in the workplace, you may be aware the Northern Territory Government has now published COVID‐19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace regarding when certain workers are legally required to be vaccinated against COVID‐19 to continue working.

Northern Territory Mandatory Vaccination Directions (Directions)

The Directions require specified workers in the Territory to receive their first COVID‐19 vaccine dose before 13 November 2021 in order to continue working. In addition, specified workers must have received two doses of the COVID‐19 vaccine before 25 December 2021 in order to continue working.

On and from those dates a worker who has not received the required dose or doses of an approved COVID‐19 vaccine must not attend their workplace.

Who the Directions Apply To?

Your position falls within at least one of the following specified worker categories contained in Clause 4 of the Directions:

(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
* Infrastructure or essential logistics includes telecommunications systems.

What Does This Mean For You?

The purpose of this email is to inform you that given the nature of your role there is a legal requirement for:

1. nbn to take reasonable steps to determine whether you are partially or fully vaccinated, or unvaccinated, and maintain a register containing the information evidencing that determination; and
2. you, on request, to provide evidence nbn needs to determine the extent to which you are vaccinated with an approved COVID‐19 vaccine.
Exceptions
The Directions will not apply when a worker has obtained, and provides to nbn, a certificate from a medical practitioner or the Commonwealth that confirms the worker is unable (due to a medical contraindication to all approved COVID‐19 vaccines) to receive a dose, or a further dose, of a COVID‐19 vaccine.
The Required Information
A completed appointment slip or medical certificate will be accepted as evidence of the first dose, and the Australian Government COVID‐19 digital certificate will be accepted as evidence of both doses.
To assist nbn and you to meet the legal obligations contained in the Directions and ensure you can continue working on and after 13 November 2021, an online submission process is available here for you to confirm your vaccination status, whether fully, partially or unvaccinated, before close of business on Monday, 8 November 2021.
For staff partially vaccinated by 13 November 2021, you will subsequently also need to provide evidence you have received two doses of the COVID‐19 vaccine before 25 December 2021.
If a medical exception applies to you (as outlined above), the required medical evidence needs to be received and considered by nbn by close of business 8 November 2021.
All information received will be stored on a secure register. The information will not be passed on to any third parties without your approval.
Consequences
All employers and their workers (covered by these Directions) have a legal requirement to comply with the Directions.
Without the required vaccination and requested evidence to substantiate this, you will not be permitted to work while the Directions are in place unless a medical exemption applies.
Our request for you to provide evidence of vaccination or, alternatively, valid grounds for a medical exception, is a reasonable and lawful instruction. Consequences for failing to provide evidence of your vaccination status are explained in the attached FAQs.
We appreciate your co‐operation as we work to meet the obligations of the Directions and ensure minimal disruption for you and the workplace. If you wish to discuss the contents of this email or have any queries regarding the FAQs or the online submission process, please lodge an HSE type People Central case.
Regards
Sally Kincaid
Chief People & Culture Officer”

The Applicant responded to Ms Kincaid as follows:

“Hi Sally,
Can you please cite which Act and Section your claim of a Reasonable and Lawful instruction is made within, please?
John Lisle
Senior Field Technical Specialist”

This correspondence was referred to Ms Louise Churchill, Employee Relations Business Partner for the Respondent, who provided the following response to the Applicant:

“Dear John

Sally has referred your email to me and I thank you for your enquiry regarding the legality and reasonableness of nbn’s requests as outlined in Sally’s email to you.
The Northern Territory of Australia COVID‐19 Directions (No.55) 2021: Directions for mandatory vaccination of workers to attend the workplace has been published by the Territory Chief Health Officer under section 52 of the Public and Environmental Health Act 2011 (the Act).
Both workers and nbn have a legal requirement to comply with the Directions and failure to do so is an offence and fines may be given under Section 56 of the Act.
I confirm there is nothing unlawful or unreasonable in the requests made by nbn to ensure our compliance with the Directions and I also confirm that requests for exception (which do not place nbn in breach of the Directions) will be considered .
Louise Churchill
Employee Relations Business Partner”

The Applicant further wrote to Ms Churchill seeking confirmation regarding health and safety concerns and risk assessments. Ms Churchill provided the following response to the Applicant:

“Dear John

As per my previous email, risk assessments and material safety data sheets are not a requirement under the NT Chief Health Officer Directions. Nbn is following (and ensuring that our employees follow) the Northern Territory Government’s requirements.

As far as the other legislation you have referred to goes, we are not aware of anything within them (or any other legislation) which overrides the Northern Territory health directions.

Thank you again for sending your queries through and I hope I have explained nbn’s responsibilities with regard to the health directions.

Kind regards
Louise

Louise Churchill
Employee Relations Business Partner”

On 5 November 2021, the Applicant wrote to Mr Simon Alder, General Manager, State Field Operations for the Respondent, enquiring about the possibility for rapid antigen testing as an alternative to vaccination:

“Hi Simon,

Today I was made aware of a newly approved ( TGA. ARGT #374065) product which provides instant COVID test results onsite.
Its a SARS‐COV‐2 antigen test that is potentially more accurate than PCR and costs $15/test
With a testing frequency of once every three days it has been suggested this is a viable alternative to vaccination.
Would nbn agree?
John Lisle
Senior Field Technical Specialist”

This enquiry was referred to Ms Churchill, who responded on 8 November 2021 as follows:

“Dear Simon, John and Reino

My apologies for the delay in replying.
Unfortunately the NT Health Directions do not make reference to, or recognise, any form of rapid testing to allow workers to attend the workplace.
Kind regards
Louise
Louise Churchill
Employee Relations Business Partner”

Regarding the Applicant’s vaccination status, Ms Libby Whitfield, Senior Manager – Health, Wellbeing and Workers Compensation for the Respondent, wrote to the Applicant on 9 November 2021 by email with the subject line ‘Medical Exemption Process’:

“Hi John –

I hope this email finds you well. My name is Libby Whitfield and I work in the nbn HSE team.
I am working on the response to the Northern Territory public health order around COVID vaccinations and we have received your vaccination status update.
Thank you for submitting that.
Just touching base to discuss the process for applying for a medical exemption and explain what happens.
Let me know when a good time to chat may be.
Thanks ‐ Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

The Applicant responded as follows:

“Hi Libby, thanks for reaching out.

I’m currently dealing with a fair bit of pain associated to a foot injury/disorder (which I have a medical certificate for) but I seem to be responding to medications, which is good.
If you are free tomorrow or Thursday morning I’d be happy to chat then (most days, I’ve been in agony by around 1300 each day).
John Lisle
Senior Field Technical Specialist”

On 10 November 2021, Mr Alder wrote to the Applicant further to a telephone conversation they had that morning:

“Hi John,

Thanks for taking my call this morning and good to hear your medical condition is improving. As per our conversation you confirmed you have received an email from Libby Whitfield (HSE advisor) contacting you in regards to the workday submission to pursue the request to seek medial assistance through the contraindication. Can you please call Libby to initiate the process.
During our conversation I also outlined to you (as per the email sent to you from Sally Kincaid)
The NT Chief Medical Officer has issued Directions for specified workers and their employers in the Territory regarding mandatory vaccination. The Chief Medical Officer Directions for mandatory vaccination are a legal requirement for both nbn and you to permit you to continue working. Our request for vaccine information is a reasonable and lawful instruction. Failure to follow a reasonable and lawful instruction is in breach of the nbn Code of Conduct and may be treated as serious misconduct. The failure would be managed in accordance with the nbn Managing Workplace Performance and Behaviour Policy, and consideration will be given to appropriate disciplinary action up to and including termination of employment.
You will receive a formal notification in this regard in due course.
In the meantime, as you are not allowed to work from next Monday we had a discussion about proceeding on leave. The default position will be leave without pay, however your enquiry regarding the taking of some accrued leave, possibly at half pay, for a period of time is being considered. I have left a message on your mobile explaining the process to request half pay, please call me back if you require clarification.
I appreciate these are difficult circumstance for you and your family and we will try to support you through the difficult times, I’m sure you are aware of the EAP service can be contacted on 1300 687 327, but also please don’t hesitate to contact me or your manager Dave Campbell if you require further assistance.
Regards
Simon Alder
General Manager SA NT Field Services | Operations”

(My emphasis)

Following a conversation between Ms Whitfield and the Applicant on 12 November 2021, Ms Whitfield wrote to the Applicant stating:

“Hi John –

Thanks so much for taking the time to speak with me this morning.
As promised, and with your consent, I will be speaking with the team at Kinnect to see how we may be able to expedite some appointments for you given the referral you have received to see a specialist in immunology and allergens.
I will revert to you with details once I have spoken wit the team.
I also flagged with the team that you mentioned that you had put leave into the system and I understand that this is being considered.
As I mentioned during our chat, we have experts available to support you and your family, should you wish to speak with our Employee Assistance Program team. You can contact them directly, or I am also happy to have them call you to set up a time to chat if you would like (with your consent). Just let me know.
Thanks again for your open dialogue, and I will be back in contact with you once I have further details from Kinnect.
Take care, Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

On 24 November 2021, Ms Whitfield wrote to the Applicant confirming that she had provided Kinnect with the Applicant’s contact details and that they would be in contact accordingly.

Ms Whitfield sent further follow up emails to the Applicant, including correspondence to the Applicant on 2 December 2021 to the effect that she had been in contact with Kinnect who had confirmed an appointment had been made for Monday 6 December 2021 for the Applicant to speak with a ‘Dr Edwards’. By way of response and confirmation, the Applicant wrote to Ms Whitfield on 3 December 2021 as follows:

“Hi Libby,
I just accepted their invite for Monday.
I’m doing okay, thanks for thinking about me, but I am in a process of internal reflection at the moment. I’ve had some very difficult conversations with my Mother, Aunty and others just recently and I’m not prepared to discuss anything further just for the moment.
Please don’t take it personally or anything.
The Darwin Office decided to organise a self‐funded Christmas lunch for today and I was looking forward to going to that but decided to send my apologies for the same reasons.
This is not some spiral into depression though; I have a really great GP who is working with me to make some improvements and changes and I’m actually feeling pretty good.
Hope you understand.
John Lisle
Senior Field Technical Specialist”

Ms Whitfield wrote to the Applicant on 7 December 2021, checking in to see if the Applicant managed to connect with Kinnect the day prior. The Applicant provided his response on 9 December 2021 as follows:

“Hi Libby,

Yes it’s heating up!
I did meet with nbn’s Doctor and spoke with him for about 1hr. I took an action to get in contact with Fiona Stanley Hospital to obtain my records of allergen testing to be prepared for the eventual appointment via the GP Referral to RDH.
I have completed the FSH FoI process on Monday evening but it may take up to 45 days to hear back.
What date will nbn seek to terminate my employment ?
John Lisle
Senior Field Technical Specialist”

Ms Whitfield responded to the Applicant on 9 December 2021 stating:

“Hi there John –
Oh goodness, some warmth would be so nice, it is about 16 degrees here today, I am in my puffer jacket!
Glad to hear that you were able to meet with the doctor and get some guidance. Goodness, 45 days seems like a long wait doesn’t it?
With regards to your employment, I am not across any of those details I am sorry. Would you like me to ask one of the Employee Relations team to touch base with you perhaps?
Would that be helpful? Let me know what you think, and the best method of contact for you.

Take care and again, please let me know if I can support you with anything.
Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

Ms Whitfield did not receive any response and further wrote to the Applicant on 15 December 2021:

“Hi John –

Just checking in to see how you are going? Do you need anything from me at this stage?
If so, please let me know.
Thanks ‐ Libby
Libby Whitfield”

The Respondent provided the ‘Employee Health Risk Survey Outcome: COVID-19 Health Risk Summary Report’ for the Applicant as prepared by Kinnect, dated 17 December 2021 and signed by Dr Graeme Edwards FAFOEM RACP, Senior Consultant Physician Occupational and Environmental Medicine. This document relevantly provides that:

“• John has a documented medical condition that creates a heightened risk of contracting the SARS-Cov-2 virus should he be exposed; as well as a clinical profile that places him at greater risk of suffering from a more severe form of COVID-19 should he be infected.
· I was unable to identify an absolute contra-indication to any of the three vaccines currently available in Australia.

…

John has been encouraged to be vaccinated as soon as practical. He has a choice to:
(i) accept vaccination, administered in a setting with appropriate contingency resources to deal with the inherent risks, or
(ii) experience the risks and anticipated consequences (health and otherwise) of not being vaccinated.

If there was a reasonable expectation that John might qualify for an exemption, it is possible to register for a temporary exemption while his situation is formally assessed. However, I have advised John, based on the information he has provided, it is "very unlikely" he will qualify. I have specifically advised John: waiting for the opinion of a suitably qualified specialist medical practitioner will only delay the above decision. I qualified this position as I did not have the precise details and test results associated with a near death incident that resulted in a 2016admission to the Fiona Stanley Hospital in Perth, WA. This information will be necessary for the desired specialist opinion. I indicated to John how he might obtain the necessary information from the Fiona Stanley Hospital for his treating specialist's consideration.”

Receiving no response from the Applicant to the correspondence of 15 December, Ms Whitfield wrote to the Applicant on 12 January 2022 as follows:

“Hi there John –

Happy new year…..just wanted to touch base and see if you needed anything?
Any news from the Perth hospital?
Let me know if you want to discuss this at any time.
Take care, Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

The Applicant provided a response to Ms Whitfield on 13 January 2022 in the following terms:

“Hi Libby,

Going okay thanks. Yes, I obtained my records from Fiona Stanley and will be ready to attend any appointment.
In the meantime, I am after the Insurance details of the Company. If nbnco claims to be self‐insured, can you please advise who that is underwritten by?
Thanks in advance,
John Lisle
Senior Field Technical Specialist”

Ms Whitfield responded to the Applicant on that same date:

“Hi there John –

Great to hear from you.
Re insurance info – you will find the details on the HUB.
Not sure what you mean self‐insured? But the insurance info I have access to is on this page. Worker Injury and Illness (sharepoint.com) ‐ go right to the bottom – on the right hand side.
With regards to your medical records from Fiona Stanley, what was the agreed next step with Kinnect? Do you need to contact them again? Will they assist you to keep the process moving?
Let me know when have a moment.
Thanks ‐ Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

The Applicant again wrote to Ms Whitfield on 13 January 2022 with the following:

“Thanks Libby,
I wasnt sure about the insurance; i think at one stage Fleet advised us that they had moved to self insurance and I wasnt sure if that was company wide.
The Insurance Details I need are for Corporate, as opposed to Individual Injury etc.
I don’t believe that Kinnect will be of any further assistance, well I wasn't given any impression there was anything further they could do on my behalf. I just have to wait for RDH to call me.

While we wait;
I am wondering if you or nbn at large are aware of the latest information that has been made public from the US?
Are you familiar with Project Veritas?
I wonder if nbn has any opinion on the fact that the US Military (DARPA) was aware of the bio‐weapon development of SARS‐COV‐2 as a “synthetic spike protein chimera” by Ecohealth Alliance in 2018 ?
Does nbn have any position on the fact that by April 2020, DARPA knew that Ivermectin and Hydroxychloroquine were both confirmed as “curatives” and that these existing on‐shelf medications removed the justification for human experimentation of mRNA technology under emergency use?
Both of these drugs have been used with high success rates in various countries as a prophylaxis and alternative to the experimental mRNA shots.
John Lisle
Senior Field Technical Specialist”

Ms Whitfield provided a response to the Applicant’s enquiries on 20 January 2022 as follows:

“Hi there John –

Apologies for the delayed response on this one – COVID is certainly keeping us on our toes.
With regards to your comments / queries:
I wasnt sure about the insurance; i think at one stage Fleet advised us that they had moved to self insurance and I wasnt sure if that was company wide.
The Insurance Details I need are for Corporate, as opposed to Individual Injury etc.
I suggest asking Dave Campbell about this one, as I am not familiar with the specifics around Fleet insurance sorry.
I don’t believe that Kinnect will be of any further assistance, well I wasn't given any impression there was anything further they could do on my behalf. I just have to wait for RDH to call me.
OK understand, if you feel that they can be of assistance, please reach back out to them, or come back via me.
While we wait;
I am wondering if you or nbn at large are aware of the latest information that has been made public from the US? Are you familiar with Project Veritas?
I wonder if nbn has any opinion on the fact that the US Military (DARPA) was aware of the bio‐weapon development of SARS‐COV‐2 as a “synthetic spike protein chimera” by Ecohealth Alliance in 2018 ?
Does nbn have any position on the fact that by April 2020, DARPA knew that Ivermectin and Hydroxychloroquine were both confirmed as “curatives” and that these existing on‐shelf medications removed the justification for human experimentation of mRNA technology under emergency use?
Both of these drugs have been used with high success rates in various countries as a prophylaxis and alternative to the experimental mRNA shots.
With regards to this query, including on mRNA vaccines, nbn’s position with regards to managing COVID‐19 risks in our workplace, including vaccination is clear and can be found by accessing the COVID Vaccine Policy which can be found on the HUB. Whilst nbn respects that people have diverse views on this topic, and that people have the right to choose whether to get vaccinated or not, nbn has an obligation to all in regard to the safety of the workplace.
Take care John, and please let me know if we can support you any further.
Libby
Libby Whitfield
Senior Manager – Health, Wellbeing and Workers Compensation”

(Original emphasis)

The Applicant did not provide any response, and on 4 February 2022 Ms Whitfield sent a follow up email to the Applicant asking if she could do anything further to support the Applicant. The Applicant provided a response to Ms Whitfield on 4 February 2022 as follows:

“Hi Libby,
Thanks but I’m perfectly fine. Fully recovered and finished isolation ‐ I’ve been continuing with my health plan and hitting targets ‐ I’m feeling great actually.
I received the Allergen study results from Fiona Stanley ages ago ‐ I thought I mentioned that, sorry.
I’m just still waiting for RDH to call me for the appointment.
Now that I’ve had COVID and recovered I expect i will obtain an exemption but I dont know how long it will last for…
I’ve been told its only for six months and others have said its only four months.
What is the position that nbn takes on acquired immunity from infection?
John Lisle
Senior Field Technical Specialist”

Ms Whitfield provided a response on 4 February 2022 which, relevantly, included:

“With regards to your medical exemption for your COVID infection, nbn will be required to comply with the NT public health orders and as I am not across the specifics of the NT requirements, I will need to get advice on what they entail.”

On 4 February 2022, further to a text message exchange with the Applicant, Mr Campbell wrote to the Applicant as follows:

“Hi John,
thanks for sending through your confirmation that you don’t want to extend your leave beyond Monday night.
This means you’re due back at work on Tuesday 8 February. Because of the NT Govt Health Orders currently in place, you are not to return to the TAND on Tuesday however you are required to be contactable so we can make a time to discuss the health orders and your vaccination status, and any medical exemption you may have that would allow a return to work
Thanks
David Campbell
Area Manager | NT & SA South Operations”

Further to a meeting of 8 February 2022, Mr Campbell provided email correspondence to Ms Churchill and Mr Alder with the subject line ‘Notes from John Lisle meeting 8 Feb’:

“HI Louise
As discussed John has asked a question & made some statements
If you can respond to the question I will forward it on too him

Questions

· Is anyone at NBN giving me a directive to undergo a medical procedure ( I have answered NO but he wants an official answer)
· John confirmed he does not have a PCR test for his recent positive RAT test

Statements

·   Do not want to be contacted by phone – I will consider that harassment – only in writing
·   Do not consent to discuss private medical info with anyone at NBN
·   Removed any previous consent - implied or otherwise
·   Will not participate in any verbal conversations or meetings until I have legal representation – To Be Advised
·   Will correspond via Text & Email only

FYI
I did inform John NBN wanted a exemption, which he did not have
I did inform John that NBN was paying him for today & tomorrow
But he wouldn’t change his stance on communication
Thanks
David Campbell
Area Manager | NT & SA South Operations”

Mr Campbell also wrote to the Applicant that afternoon as follows:

“Hi John
Thank you for meeting with me today to discuss your return to work after your leave. I have confirmed that the requirement to be fully vaccinated or alternatively have a valid medical exemption, is a legal obligation in order for employers and employees to comply with the Chief Health Officer Directions.

We will now consider what you have explained in the meeting today and I confirm you will receive a communication regarding next steps in due course. As I explained, you will continue to be paid by nbn with the requirement to maintain your availability for communications with nbn. You will not be expected to undertake any work or book any leave for the time being.

Thanks
Dave Campbell”

The Respondent provided a Show Cause letter to the Applicant on 10 February 2022, which stated:

“Dear John

Potential termination: Show cause

I refer to communications with you commencing in November 2021 regarding the enforcement of Northern Territory Government Health Directions (Directions) from 13 November 2021 and the specific requirements in those Directions to continue working beyond that date.

You received an email from Chief People & Culture Officer, Sally Kinkaid on 3 November 2021 explaining specified workers in the Directions must receive the prescribed doses of COVID-19 vaccine in order to continue working. Sally Kinkaid explained that all workers covered by the Directions have a legal requirement to comply with the Directions unless a medical exemption applied under the Directions. In conjunction with this email, you were provided with information explaining that not providing proof of full vaccination or medical exemption would be a failure to follow a lawful and reasonable instruction and be in breach of nbn’s Code of Conduct which may be treated as misconduct.

On 9 November 2021 you participated in a team meeting via Teams which outlined the information provided in Sally Kinkaid’s email, and reinforced the legal requirements for both nbn and employees effective 13 November 2021. We subsequently met via a telephone conversation on 10 November 2021 where you informed me that you had no intention to be vaccinated and of your intention to pursue a medical exemption because of a medical contraindication. I confirmed that a member of nbn’s HSE team could assist with this.

In the meeting I also outlined to you that the Directions for mandatory vaccination were a legal requirement to permit you to continue working. I confirmed that failure to follow a reasonable and lawful instruction is in breach of the nbn Code of Conduct and may be treated as serious misconduct.

Following that meeting you were provided with measures to support your pursuit of a medical exemption, while ensuring neither you nor nbn failed to comply with the Directions. For example, you have been able to access accrued leave to ensure you did not have to attend the workplace while seeking an exemption and also have had access to confidential support services through our Employee Assistance Program and HSE support to expedite/facilitate medical appointments to assist with your application for a medical exemption.

On 18 January 2022 you informed your manager, Dave Campbell, that you had a positive rapid antigen test (RA test) from the day before, 17 January 2022 and provided your declaration and confirmation from the Northern Territory Government.

Your annual leave was due to end on Monday, 7 February 2022 and on 4 February 2022 you were notified by your manager that you could not attend the workplace on 8 February as the Directions were still in force and you had not provided proof of vaccination or a valid medical exemption as required by the Directions.

You met with your manager on 8 February 2022 to discuss: your return to work after your leave; the situation with the Directions continuing to be in place requiring full vaccination or a medical exemption; and the legal obligations for nbn and you to comply with the Directions remaining in place. In the meeting with you on 8 February 2022, it was confirmed that, in the absence of evidence of full vaccination, nbn required you to provide evidence of a medical exemption in the form required by the Directions (that is, a valid Commonwealth Government exemption certificate) in order to return to the workplace. It was suggested that you attend a medical practitioner to start the process for obtaining a medical exemption, if you believed that you qualified for one.

You stated to your manager on 8 February 2022 that you –

• did not have a medical exemption or a PCR test confirmation of your recent positive RA test;
• did not intend to visit a medical practitioner to obtain a medical exemption;
• do not want to participate in any verbal conversations with all communications to be in writing;
• do not consent to discussing private medical information with anyone at nbn; and
• would withdraw any consent previously provided to nbn in relation to vaccination status.

Show cause : Next Steps

As we have explained, you are not legally permitted to perform your duties because you are not fully vaccinated and you have not provided the required evidence of a valid medical exemption. Further, you have said that you will not be taking the required steps to obtain a medical exemption. For these reasons it appears to nbn that you will be unable to perform your role for the foreseeable future. nbn is, therefore, considering terminating your employment.

If there is any information which you would like nbn to take into account in relation to this decision or any comment you would like to make (that is, to ‘show cause’ as to why nbn should continue to employ you given that you cannot legally perform your role), please do so in writing by email to me no later than 5:00pm on Friday 11 February 2022.

We will give due consideration to your written response prior to making any final decision in relation to your employment.

nbn proposes to meet with you at 2:00pm (AEDT) on Monday 14 February 2022 to discuss your response and to inform you of the decision we have made. You are welcome to attend the meeting with a support person.

Please note that should you not provide a written response within the required timeframe, we may make a decision on your ongoing employment based on the information available to us at the time.

Should you have any questions in relation to this letter, please do not hesitate to reach out to me directly. In the meantime, I wish to continue to remind you of the availability of the Employee Assistance Program which is a free and confidential counselling service. The EAP can be contacted on [redacted].

Yours sincerely

Simon Alder
General Manager
State Field Operations”

The Applicant responded to Mr Alder by email on 10 February 2022:

“Hi Simon,

Your demand for a response by 5pm the next day is unreasonable and insufficient to obtain a qualified legal opinion or supply a response.
I request that you reconsider to a term of 14 Business Days.
John Lisle
Senior Field Technical Specialist”

Mr Alder responded in the early evening of 10 February 2022 as follows:

“Hi John

You have been on notice about the requirement to be vaccinated or provide a medical exemption under Northern Territory law since November 2021. We are prepared to extend the time for your response until 5.00pm on Thursday, 17 February 2022. I will now arrange for us to meet on Friday, 18 February 2022 at 2:00pm (AEDT).
Regards
Simon Alder
General Manager SA NT Field Services | Operations”

The Applicant further wrote to Mr Alder on 11 February 2022, stating:

“Thank you, Simon.

I don’t dispute the notion of being on notice, however I would term it more accurately as duress, since November 2020.
Your letter was only sent to me yesterday, no draft was shared with me prior and I hope that you can appreciate how busy the legal profession is because of the widespread lawlessness of contemporary times.
John Lisle
Senior Field Technical Specialist”

The Respondent dismissed the Applicant by formal letter on 21 February 2022:

“Dear John

Your employment with nbn

I refer previous correspondence regarding legal requirements of the Northern Territory Government Health Directions (Directions) in order to keep working and, more particularly, the letter I sent to you on 10 February 2022.

In the letter dated 10 February 2022 you were informed that you are not legally permitted to perform your duties because you have confirmed you are not fully vaccinated and have not provided the required evidence of a valid medical exemption. You were asked to submit any information you would like nbn to take into account when considering termination of your employment.

On Thursday 10 February 2022 I confirmed you had the opportunity to respond by 5:00pm on Thursday 17 February 2022 and I would arrange a meeting on Friday 18 February 2022 at 2.00pm (AEDT).

On Friday 18 February 2022 I sent you a calendar invite for a Teams meeting with a follow up SMS to your mobile notifying you that a calendar invite had been sent to your email, you did not accept the calendar invite and did not respond to my SMS. I confirm that this meeting did not eventuate as you did not join that meeting.

Outcome

After considering the information currently available, nbn is reasonably satisfied that you are unable to comply with the legal requirements laid out in the Directions.

For these reasons, nbn has decided to terminate your employment with notice, pursuant to clauses 15.2 (a) and (b) of your employment contract dated 28 July 2015 (Contract).

Accordingly, I confirm that your employment with nbn will end immediately and you will receive a payment in lieu of notice, accrued but untaken annual leave entitlements and any other entitlements that may be outstanding will be paid to you in the next pay cycle.

You will be contacted by your Manager, Dave Campbell, in relation to arrangements for the return of all nbn property in your possession or control, including but not limited to your nbn laptop, mobile phone, security pass and uniform.

nbn reminds you that you remain bound by the continuing obligations in your Contract, including (without limitation) to protect nbn's confidential information, following the termination of your employment with nbn.

Should you require any support, I take this opportunity to remind you of nbn's confidential Employee Assistance Program, which can be contacted by phoning [redacted] and can be accessed for a period of one month following termination.

Yours sincerely

Simon Alder
General Manager State Field Operations SA/NT”

(My emphasis)

The matter was listed for Hearing by Microsoft Teams on 15 June 2022. The Applicant appeared and gave evidence on his own behalf. Mr Mark Wilde, Senior Legal Counsel, was granted leave to appear for the Respondent.

The Respondent relied on the evidence of Ms Louise Churchill, Employee Relations Business Partner for the Respondent, and Mr Simon Alder, General Manager, State Field Operations for the Respondent.

Statutory Provisions

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

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

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

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

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

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

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

Applicant’s Submissions

The Applicant submitted that he commenced with the Respondent in September 2013. In April 2021, the Applicant was made redundant by the Respondent, however, won a newly created ‘Senior Field Technical Specialist’ role which he commenced on 26 April 2021. The Applicant submitted this was the role he held at the time of his dismissal. He submitted that this role was not re-advertised following his dismissal, rather the Respondent advertised two roles, a Technician and a Field Engineer, both beneath the level of the Applicant’s former role in terms of remuneration and responsibilities.

As to whether the Respondent had a valid reason to dismiss the Applicant, the Applicant made the following submissions regarding the COVID-19 vaccine mandate.

The Applicant submitted that the Australian Government Department of Health “Australian Immunisation Handbook” states that Valid Consent is a requirement for vaccination, and specifically requires that:

“It must be given voluntarily in the absence of undue pressure, coercion or manipulation.”

The Applicant submitted that a Vaccine Administrator could not comply with this criterion where he was threatened with termination by the Respondent. The Applicant submitted that the Respondent used coercion against himself “and a third party (Vaccine Administrator)” to “subvert [his] rights to bodily autonomy and valid consent”. The Applicant submitted, therefore, he was unable to comply with the Respondent’s ‘demand’ that he be vaccinated with a COVID-19 vaccine.

The Applicant submitted that:

“Whilst I can appreciate the desire of nbn co to comply with a Chief Health Officer Directive they are not afforded leave to contravene Criminal Codes or other Acts in order to do so”.

Specifically, the Applicant submitted that in effecting his termination, the Respondent contravened the:

“Northern Territory Criminal Code Act 1983 Sections 227, 281, 289, 292 and Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (NT), 135.1, 135.4; also 136.1 as related to the denial that Site Specific Risk assessments were needed and other false or misleading statements, including those made to this Commission”.

Further, the Applicant submitted that while the Respondent informed its employees that they were permitted to obtain COVID-19 vaccinations within paid hours of operation, which therefore constituted a “work activity”, the Respondent “refused to treat any adverse reaction under Workers Compensation as a work place injury; stating that the ‘normal Leave Policy applies’”. The Applicant submitted that the Respondent denied that they needed to treat a vaccine adverse reaction as a reportable ‘Lost Time Incident’ under Health, Safety & Environment rules.

The Applicant submitted that his participation in medical trials and use of experimental drugs would void his life insurance policy, for which the Respondent has refused to accept any liability. The Applicant submitted this would mean his beneficiaries would need to fight for compensation over an act that the Respondent had forced him to perform, and which included the possibility of death.

The Applicant submitted that during the consultation process around the vaccination mandate, the Respondent encouraged employees to email questions to Ms Louise Churchill, Employee Relations Business Partner for the Respondent. The Applicant submitted that, several times, Ms Churchill replied to these questions then used the “recall and delete” feature of the email system to “purge her response from our inboxes and would not replace or update her response or offer any explanation”. The Applicant submitted this remained a concern to him.

The Applicant submitted that COVID-19 vaccines are operating under an “experimental status” constituting a “medical trial” which he did not consent to participate in. The Applicant submitted that CHO Direction No. 55 and its mandate:

“only applies to parties that accept them & I was not under any contract with the Mandator (Chief Health Officer). No Directive has ever been served to me personally and would not be enforceable unless I accept such “offer to contract” and become a Mandatee.”

The Applicant submitted that he made the Respondent aware of this and placed it on notice of liability in November 2021. The Applicant submitted the following matters are relevant, with reference to items of his employment contract with the Respondent:

“• Rescindment, under Section 24, is the only relevant option to “NTG CHO Directive 55”
· And given such, section 4.3 “Warranty” and section 19 “Privacy” has no bearing on this matter, either.”

The Applicant submitted that the Respondent acted neither reasonably nor lawfully. The Applicant cited the Objects of the FW Act, submitting that, with reference to s.3(e), the Respondent discriminated against him regarding his constitutionally protected right to choose if he gave consent to a medical procedure or if he participated in “Human Trials of Experimental Drugs”. The Applicant submitted, further, that the Respondent displayed “explicit racism” by seeking to exclude the Applicant from work “over a potential to interact with anyone of Aboriginal descent as an entire group”. The Applicant submitted that the Respondent made no consideration of any opportunities for alternative arrangements to be made, such as administrative controls and use of PPE, which had been implemented successfully for two years prior.

The Applicant submitted that the Anti-Discrimination Act 1992 (NT) makes no mention of race in its definition of ‘Vulnerable Persons’, stating that the category “includes children, aged persons and persons with a physical or intellectual disability or mental illness.” The Applicant further submitted that the Respondent acted contrary to the Anti-Discrimination Act, as his “COVID-19 Vaccination or Exemption Status became an “irrelevant medical record” after [he] contracted COVID-19 and recovered from it, conferring natural immunity”. The Applicant submitted that under the Act, such action constitutes a victimisation that warrants prosecution within the Criminal Code. The Applicant submitted that the Respondent took “adverse action” in terminating him.

The Applicant submitted that CHO Direction No. 55, as it relates to the Respondent and its “prescriptions for enforced vaccination” to work within ‘essential infrastructure’, constitutes industrial action by the Territory to a National System Employer. The Applicant submitted that s.26(1) of the FW Act states that it applies “to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.” The Applicant submitted that nothing in the FW Act allows for the Respondent to act on behalf of the CHO to take the industrial action within CHO Direction No.55. Further, the Applicant submitted such action should be considered as a “non-excluded matter” (s.27(2) of the FW Act) as the vaccine relates to the Applicant’s health and safety.

As to whether the Respondent is classified as ‘critical infrastructure’, the Applicant submitted that:

“• Reliance on the nbn network for critical communications has been traditionally low for a number of reasons, but mainly due to pricing and the ubiquity of mobile phones. Nbn only guarantee’s voice communication when a service is provided via their Voice Hardware Ports with a Battery Backup unit; Service Providers favor delivery of telephony via Voice over IP on their own hardware as it is cheaper than via nbn’s solution. Nbn offers no service guarantee to Service Provider VoIP facilities.

· Approximately 99% of all building fire panels and lift phones in the Northern Territory operate on a combination of VFH Radio and 3G/4G cellular connections prior to the nbn rollout. This being a historical norm due to extensive and repeated outages to the legacy PSTN (Telstra Copper Network) in a lightning prone area. Very few sites bothered to switch.

· Nbn’s own reporting on network traffic and utilization will confirm the overwhelming primary use is for internet traffic and streaming services such as Netflix; not “life and limb” communications.

· The only time that temporary nbn services have been relevant to the Police in the Northern Territory is so their staff at COVID border check points outside Telstra Mobile coverage (i.e. on the Victoria Highway between Kununurra & Timber Creek) could pass the time on personal devices and access border entry websites such as the GTG system via a portable Skymuster Satellite connection.

· As EMLO I was never once engaged by NTG PFES to attend the Command Centre or to provide assistance for any cyclones or any of the multiple flooding events in locations such as Wadeye. This includes Cyclone Marcus that directly hit Darwin resulting in months of work for me at over 800 individual damage locations.

· Proactive Communications that I initiated to the NT Government Police, Fire and Emergency Services in coordination for cyclone preparation is attached for an example of the apathy towards nbn prior to COVID-19.”

Further, the Applicant submitted that he had minimal interaction with Indigenous Australian persons in his role, noting the following:

“• Between 2019 & 2021 I spent multiple weeks in Alice Springs and dealt only with non-Aboriginal members of Tangentyere Council and 20+ Roadside Cabinets
oProviding services to “Town Camps” over looked in the initial rollout
oUpgrading back-haul capacity for FTTN Nodes to accommodate COVID Working from Home congestion.”

The Applicant submitted that the Respondent and the Australian Government are victims of fraud, as they failed to undertake “even the most basic level of risk assessment or analysis of the facts; they chose to punish people, like myself, who did”. The Applicant submitted that the survivability of the virus is 99.n% and is a factor the Respondent refused to analyse or consider.

The Applicant also made substantive submissions as to the effectiveness of the COVID-19 vaccines, including overseas data regarding adverse reactions to the Pfizer vaccine. As these matters are outside the scope of the Commission’s jurisdiction, they have not been summarised here.

Effects of the dismissal

The Applicant submitted that as a result of his dismissal, he is now without a job and unable to use his training or experience. The Applicant submitted that, at the time of filing his submissions, he was about to lose his home and was contemplating leaving the country.

Respondent’s Submissions

The Respondent denied that the Applicant’s dismissal was unfair pursuant to section 385 of the FW Act.

The Respondent submitted that as a Senior Field Technician Specialist, the Applicant was responsible for significant project management and technical advice and support in the field to nbn employees and external service providers working on the National Broadband Network as well as on-call work to maintain and restore critical network elements as needed and to respond to network incidents.

CHO Direction No. 55

The Respondent noted that the Applicant was a worker to whom CHO Direction No. 55 applied as, per direction 4(a), “a worker who, during the course of work, is likely to come into contact with a vulnerable person”. The Respondent noted that under the Directions, a “vulnerable person” includes a person under 12 years of age or an Aboriginal person. The Respondent submitted that the Applicant’s duties required him to interact with co-workers, including those engaged by the Respondent’s (third party) Service Delivery Partners. The Applicant’s duties, particularly his oncall duties, also required him to enter the Respondent’s customers’ private homes where necessary and to interact with customers and their families in community settings. As a result, the Respondent submitted that the Applicant was likely to come into contact with persons under 12 years of age and/or Aboriginal persons whilst performing work.

The Respondent noted that 29.5% of the population of the Northern Territory is estimated to be Aboriginal or Torres Strait Islander persons.

The Respondent submitted that in addition to direction 4(a), or in the alternative, the Applicant was a worker to whom direction 4(d) applied, being “a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory”. The Respondent submitted that section 4(e) of the Schedule to the Directions identifies “telecommunications systems” as part of the “essential infrastructure or essential logistics in the Territory” for the purposes of direction 4(d). The Respondent submitted that it operates and maintains the National Broadband Network, which is a telecommunication system, and the Applicant’s work was necessary for the operation and maintenance of that infrastructure.

The Respondent submitted that in accordance with CHO Direction No. 55, workers covered were prohibited from attending their workplaces as follows:

· from 13 November 2021 to 24 December 2021, if they had not received the first dose of an approved COVID-19 vaccine, and
· from 25 December 2021, if they had not received the second dose of an approved COVID-19 vaccine,

unless the worker has evidence of a contraindication to all approved COVID-19 vaccines.

The Respondent submitted that, as a business providing broadband services, the Respondent is a “person conducting a business or undertaking” for the purposes of the Directions. The Directions impose obligations on “persons conducting a business or undertaking”, including to ensure that workers performing work do not attend their workplaces contrary to their obligations in directions 6 and 7. The Respondent submitted it was therefore required to ensure that the Applicant did not attend the workplace unless he was vaccinated in accordance with direction 6 and 7, or had evidence (as specified in direction 9) of a contraindication to such vaccinations.

The Respondent submitted that the Applicant was, therefore, required to have a valid medical exemption or have received his first dose of a COVID-19 vaccination by 13 November 2021, and have received two doses from 25 December 2021 onwards, in order to access his workplace. The Respondent submitted that in accordance with the Directions, it was required to take reasonable steps to determine the extent to which relevant workers were compliant with the vaccination requirements, and to keep a register of this. The Respondent submitted that the Applicant was required, upon request, to provide evidence needed to determine compliance with the vaccination requirements; and any failure on the part of the Applicant or Respondent to comply with the Directions without a reasonable excuse was an offence under Section 56 of the Public and Environmental Health Act 2011 (NT).

Communication of the Vaccination Requirements to the Applicant

The Respondent submitted that in October and November 2021, it explained to the Applicant his legal requirements as an essential worker under the Directions and the possible impact that not having vaccination or a medical exemption would have on the Applicant’s employment. The Respondent submitted that the Applicant failed to provide evidence that he met the Vaccination Requirements from 13 November 2021 and had stated he would be seeking a medical exemption.

The Respondent submitted that in accordance with CHO Direction No. 55, the Applicant could not lawfully attend the workplace from 13 November 2021. The Respondent submitted that due to the nature of the Applicant’s role, he could not perform it remotely. The Respondent approved annual leave to enable the Applicant to remain employed while he sought a medical exemption. The Respondent noted that the paid leave concluded on Monday, 7 February 2022.

The Respondent submitted that it arranged for the Applicant to receive advice on vaccination and the possibility of a medical exemption from a third-party health service and rehabilitation provider, Kinnect. The occupational physician engaged by Kinnect to advise the Applicant sent a Health Risk Survey Summary to the Applicant and Respondent on 17 December 2021 indicating it would be very unlikely that he would be able to obtain a medical exemption from vaccination but noted that the Respondent had been given advice on how to obtain information relating to an incident in 2016.

The Respondent submitted that on 18 January 2022, the Applicant informed the Respondent he had returned a positive Rapid Antigen Test and provided a Rapid Antigen Test declaration and text confirmation from the Northern Territory Government.

The Respondent submitted that at a meeting held on 8 February 2022, the Applicant again failed to provide the Respondent with proof of full vaccination or a medical or temporary exemption as required by the Directions. The Respondent submitted that the Applicant also indicated that he would not take the steps required to seek a medical exemption. The Respondent submitted that it remained unable, lawfully, to permit the Applicant to attend work without obtaining such an exemption under Direction 10 of the Directions.

The Respondent noted that on 10 February 2022, it provided the Applicant with a show cause letter (extracted at paragraph [36] of this decision) advising that the Respondent was considering terminating his employment because he could not lawfully attend his workplace and therefore could not fulfil the inherent requirements of his role. The Respondent submitted that the Applicant did not respond to the letter or the Respondent’s request to meet via Microsoft Teams to discuss the letter. The Respondent noted it received no response despite extending the time for the Applicant to respond.

The Respondent submitted that the Applicant was dismissed on 21 February 2022 by way of formal letter, which is extracted at [40] of this decision.

Dismissal not unfair

The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable and therefore not unfair, for the following reasons.

Section 387(a) – valid reason

The Respondent submitted that there were two reasons for the Applicant’s dismissal. The first reason was that the Applicant could not perform the inherent requirements of his role in that he:

(a)failed to obtain the vaccinations required under Directions 6 and 7; and
(b)did not provide the evidence required under Direction 9 to qualify under Direction 8 for an exemption from the vaccination requirements, as a result of which,

(c)the Applicant could not lawfully, and the Respondent could not lawfully permit the Applicant to, attend the workplace.

The Respondent again noted that the Applicant’s work was unable to be performed from home and needed to be performed at the workplace. The Respondent submitted that due to the Applicant’s stated position against vaccination, being that it was “nonnegotiable”,[1] it was clear that the Applicant would remain unable to lawfully perform his role for the foreseeable future.

The Respondent submitted that for the reasons set out below, the first reason for the Applicant’s dismissal was sound, defensible, and well founded,[2] and had a causal connection to the termination and the conduct in question:

·   The Respondent had no choice but to comply with the Directions,
·   The Directions meant that the Applicant could not work in his role,
·   The Respondent needed the work done – operationally it could not sustain a long-term absence of the Applicant from his role,
·   The Respondent reasonably came to the conclusion that the Applicant had no intention of becoming compliant with the Directions in the short-to-medium term, or at all.
·   This reasoning for termination, in relation to other government-mandated vaccination requirements has been consistently found to be sound and appropriate.

As to the second reason for the Applicant’s dismissal, either in addition to or in the alternative to the above reason, the Respondent submitted that it had, by email to the Applicant of 3 November 2021 and Mr Alder’s telephone meeting with the Applicant of 10 November 2021, issued the Applicant with a lawful and reasonable direction to comply with the CHO Directions. The Respondent submitted that the Applicant wilfully refused to carry out this direction.

The Respondent submitted that an employee has an obligation to comply with lawful and reasonable directions issued by their employer.[3] An employee's failure to follow an employer’s lawful and reasonable directions can constitute a valid reason for dismissal.[4] The Respondent submitted that the Commission should find the Applicant refused to carry out a lawful and reasonable instruction and that the second reason for the dismissal was therefore valid.

The Respondent submitted that for the reasons set out below, the second reason for the Applicant’s dismissal was sound, defensible, and well founded, and had a causal connection to the termination and the conduct in question:

·   The Directions imposed legal obligations on both the Applicant and the Respondent. On 3 November 2021, the Applicant was directed by Sally Kincaid’s email to comply with those legal obligations.
·   The Applicant initially indicated that he would obtain evidence of an alleged medical contraindication against vaccination, but did not do so.
·   In Applicant’s text message to David Campbell on 3 February 2021 and in the discussion between on 8 February 2022 it was clear that the Applicant had no intention of becoming compliant with the Directions.
·   The Respondent considered this conduct to constitute wilful and deliberate conduct by the Applicant, inconsistent with his employment contract, warranting termination of the Applicant's employment.

Further, the Respondent submitted that in accordance with Regulation 1.07 of the Fair Work Regulations 2009, ‘serious misconduct’ includes an employee refusing to carry out a lawful and reasonable instruction that is consistent with the employment contract. The Respondent, therefore, submitted that the Applicant’s failure to comply with the Directions amounted to serious misconduct warranting termination of the Applicant’s employment.

The Respondent submitted that for these reasons, the second reason for dismissal was objectively justifiable on the facts and was therefore valid.

Sections 387(b) and (c) - Notice of reason and opportunity to respond

The Respondent submitted that it notified the Applicant of the need to comply with the Directions in November 2021, and the consequences of not complying. The Respondent submitted that the Applicant clearly understood that the path he was on would lead to the termination of his employment, as evidenced by his text exchange with Mr Campbell on 3 February 2021.

The Respondent submitted that the Applicant was given ample opportunity to put his views and to respond to the reasons including in the period following the Show Cause Letter of 10 February 2021 and prior to the termination of his employment, but did not do so.

Sections 387(d), (e), (f), (g), (h)

The Respondent submitted that sections 387(d) - (h) did not apply in the circumstances and submitted that procedural fairness was accorded to the Applicant at all times.

Other matters

The Respondent submitted, for completeness, that the CHO Directions were not a matter giving rise to consultation obligations under work health and safety laws or an enterprise agreement. The Respondent submitted that it has separately implemented its own vaccination policy since the release of the Directions (about which it consulted extensively with its workforce), however submitted that this policy was not a factor in the Applicant’s dismissal.

The Respondent submitted that the Applicant’s outline of submissions dealt with a number of matters which were irrelevant to the Respondent’s decision to terminate his employment and should not, therefore, form part of the Commission’s consideration of this application, including:

(a) The provisions of the Australian Immunisation Handbook,
(b) The allegation (which is denied) that the Respondent coerced the Applicant and an
unnamed vaccine administrator as claimed or at all,
(c) The allegation (which is denied) that the Respondent or its employees breached the
Northern Territory Criminal Code as claimed or at all,
(d) That the Respondent needed to perform site-specific risk assessments in relation to the vaccination,
(e) That the Respondent sought to procure the Applicant’s participation in medical trials using experimental drugs,
(f) That the Directions only apply to parties who accept the obligation contained therein, who contract with the Chief Health Officer or upon whom they are served personally,
(g) The allegation that the Respondent forced the Applicant to take leave (which is denied),
(h) That the provisions of the Fair Work Act 2009 (Cth) supplant or override the Directions, or are somehow inconsistent with them,
(i) That alternative arrangements, such as personal protective equipment, should have been considered as an alternative to the Vaccination Requirements,
(j) That the Anti-discrimination Act 1992 (NT) is relevant to the Directions,
(k) The allegation that the Respondent took “adverse action” towards the Applicant contrary to the Fair Work Act 2009 (Cth) (which is denied),
(l) That the Respondent cannot be bound by the Directions as a “National System Employer”, (m) That the nbn is not critical infrastructure in the Territory because some end users use mobile telephone services, or
(n) The assertion that the Applicant had minimal work interaction with Aboriginal persons while on assignment once in Alice Springs.

The Respondent submitted that for all of the above reasons, the Applicant’s dismissal was not harsh, unjust or unreasonable, and was therefore not unfair.

Remedy

The Respondent submitted that, in the event the Commission finds the Applicant’s dismissal was unfair, reinstatement is not an appropriate or practicable remedy in the circumstances, noting that if the Applicant was still unvaccinated, he remained (at the time of filing their submissions) unable to perform his duties.

The Respondent submitted that it was clear on the evidence of the Applicant’s conduct that the Respondent was faced with no other alternative to dismissal because the Applicant’s conduct was inconsistent with the continuation of the employment relationship.

The Respondent submitted that notwithstanding the Applicant’s conduct amounted to serious misconduct, to mitigate the effects of the dismissal on the Applicant, the Respondent paid the Applicant’s contractual and legislative entitlements to notice and termination payment. The Respondent submitted this is a relevant consideration for the purposes of calculating any compensation to be awarded to the Applicant pursuant to section 392 of the FW Act.

Applicant’s Reply Submissions and Submissions as to Remedy

The Applicant rejected all statements made by the Respondent.

Specifically, the Applicant provided reply submissions as follows:

“1. My job title was "Senior Field Technical Specialist", not "Senior Field Technician Specialist".

2. On call duties never entail entering a customer premises; we were "on‐call" for network events, not customer issues. If we were called out it would be invariably to an un‐manned facility, such as an exchange building, hut or cabinet (Electronic equipment failures and alarms); or a field location, generally in public property, (cable cuts or vehicles colliding with street furniture). nbn should produce evidence to prove that any field staff member anywhere in the country has ever been called into a residential abode, after hours, for a recalled fault scenario (On Call Duties). To be clear; if I had ever encountered a 12yo person in this duty I would have been reporting that to the Police.

3. nbn has once again falsely stated that I have refused to obtain a medical exemption ‐ this is patently false; I have been refused an exemption by three GP's (Dr Raman at Coolalinga Medical, Dr Heslop at Top End Medical in Rosebery, and Dr McSharry at Top End Medical Gateway) and I am still waiting to be contacted for an appointment to see a Specialist at RDH. How many more times must I clarify this?

4. Regarding point 66n, this is also patently false information and the records of my travel approvals, corporate credit card usage and expense claims will bear out the truth of my statements; I spent multiple weeks, driving and flying down to Alice on multiple occasions spanning more than a year. One such visitation included me having to abandon my work vehicle and drive a hire car back to Darwin because nbn had modified the vehicle suspension to the point of being illegal and un‐roadworthy due to the sheer incompetence of their fleet management.

5. I have not refused any vaccination. In the past I have received vaccines for Flu, Whooping Cough, Tetanus, MMR etc etc. I refuse to participate in a trail of unapproved drugs in the absence of long term safety data. When nbn took it upon themselves to push this medical procedure they did so in a manner that denied to me, coverage under works compensation and my right to information on safety and efficacy, in order to make an informed decision. I maintain that the NT Government's actions before, during and since are completely irrelevant. The NT Government fooled nbn into performing it's dirty work and the best evidence for this, is that the NT Government has not successfully fined a single business or individual for breech of the Vaccination Mandate, to date.”

Further, the Applicant submitted that Mr Wilde and Ms Churchill have “absolutely no idea what the Northern Territory work conditions are like nor do they posses a single accurate concept of the tasks, activities and responsibilities [his] employment for nbn entailed”. The Applicant submitted that Ms Churchill pushed for his termination using Mr Alder and Mr Campbell as “proxies”. The Applicant submitted the Respondent had no concern for his welfare or comprehension of his position on any matter, including the role he performed.

Remedy

While the Applicant initially sought monetary compensation, the Applicant amended the remedy sought by email to Chambers ahead of the hearing. The Applicant seeks reinstatement on the following terms:

“I request that the option to have my employment reinstated is considered, along with a permanent status of section 15.1 of my contract ‐ Gardening Leave on full pay, until I choose to resign and with no obligation to perform any duties.”

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)[5] 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)[6] 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:[7]

“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,[8] 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)[9] 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.” 

Under cross examination, the Applicant agreed that the Respondent operates a telecommunication system and that as a result direction 4(d) applies to the Applicant.

Having conceded that CHO Direction No. 55 applied, the Applicant’s argument focused on the illegality of the Direction itself.

It is not in dispute that the Applicant refused to be vaccinated for COVID19 with one of the approved vaccines. It is not in dispute that the Applicant was ultimately unsuccessful in obtaining an exemption due to a contraindication.

As a result, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant on the basis that he had failed to comply with CHO Direction No. 55. The Applicant could not attend for work. The Applicant, therefore, could not perform the inherent requirements of his job.

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. While the Applicant argued that the timeframe for responding to the Show Cause letter was insufficient, the Respondent granted him a further period, and as demonstrated by the correspondence extracted at paragraphs [8]-[40] of this decision, the Applicant wrote to the Respondent on at least 11 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.

 
Section 387(d) – Refusal of a support person  
 

On the evidence, the Respondent held a number of meetings and telephone conversations with the Applicant prior to his dismissal. There is no evidence that the Applicant requested a support person, or that any request was denied by the Respondent, in relation to these meetings.

As to the final meeting scheduled for 18 February 2022, the Applicant failed to respond or attend this meeting.

 
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 

The Applicant has raised a number of issues which fall outside the jurisdiction of the Commission. The Applicant’s primary argument that CHO Direction No. 55 is illegal is one such matter. The Commission does not rule on the legality of legislation. That issue is a matter for the Supreme Court of the Northern Territory and ultimately the Hight Court of Australia.

In Kassam v Hazzard,[10] the Chief Justice of the Supreme Court of New South Wales said:-

“[68] Third, elsewhere in her reasons, the Deputy President considered it necessary to opine on matters affecting either the validity or the appropriateness of making the Aged Care Order under the PHA (at [147] to [173]). The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.”

(My emphasis)

The Applicant also raised questions about the contents and effectiveness of the approved vaccines, alternative treatments, the Criminal Code and his insurance policies. These matters were not issues pertaining to the Applicant’s termination and fall outside the jurisdiction of the Commission.

Conclusion

The Applicant conceded that CHO Direction No. 55 applied to the Respondent and therefore to him as an employee. I have previously found that the Applicant did not comply with CHO Direction No. 55, therefore the Respondent had a valid reason to terminate the Applicant.

I am satisfied and find that the Commission does not have the jurisdiction to adjudicate on the other issues raised by the Applicant in submissions relating to the legality of his termination.

I am satisfied and find that there are no other issues identified in the submissions and evidence pertaining to sections 387(b) – (h) of the Act which would result in a determination that the Applicant’s termination was harsh, unjust or unreasonable.

The Applicant has received his statutory entitlement to a fair go.

The Application is dismissed.

I so Order.

COMMISSIONER

[1] Respondent footnote: For example, Statement of Ms Churchill at [37].

[2] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

[3] King v Catholic Education Office Diocese of Parramatta t/as Catholic Educ Kathryn Roy-Chowdhury v The Ivanhoe Girls'

Grammar School [2022] FWC 849; [2014] FWCFB 2194.

[4] Lambeth v University of Western Sydney[2009] AIRC 47 at [70].

[5] (1995) 185 CLR 410.

[6] (1998) 84 IR 1.

[7] (1995) 62 IR 371.

[8] PR4471.

[9] (1998) 84 FCR 483.

[10] [2021] NSWSC 1320 at [68].

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