Mr Mark Mobers v The Commissioner for Public Employment
[2022] FWC 2042
•16 AUGUST 2022
| [2022] FWC 2042 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Mobers
v
The Commissioner for Public Employment
(U2022/479)
| COMMISSIONER RIORDAN | SYDNEY, 16 AUGUST 2022 |
Application for an unfair dismissal remedy
On 6 January 2022, Mr Mark Mobers (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 15 December 2021 due to his inability to perform the inherent requirements of his role.
The Applicant began working for the Respondent on 18 March 2013. At the time of his dismissal, the Applicant was employed by the Respondent in the role of High Voltage Electrical Fitter/Mechanic (working as a Trade Technical). The Applicant’s employment was covered by the 2018 - 2021 Power and Water Enterprise Agreement.
The Applicant seeks reinstatement.
Background
On 18 March 2020, a public health emergency was declared in the Northern Territory as a result of the COVID-19 pandemic.
On 13 October 2021, the Northern Territory Chief Health Officer 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, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding the CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.
On 22 October 2021, Ms Vicki Telfer PSM, Commissioner for Public Employment, wrote to all Northern Territory Government staff, advising of, among other things, the requirement for employees’ vaccination statuses to be registered with their employer a week in advance of the due dates. A ‘myHR’ system had been developed for registering these details.
Also on 22 October 2021, Ms Djuna Pollard, Chief Executive Officer (CEO) of the Respondent, wrote to all Power and Water staff confirming the information provided by Ms Telfer, and advising that all staff vaccination statuses were required to be provided by 5 November 2021.
In further correspondence on 2 November 2021, the CEO advised that all Power and Water employees and contractors were essential workers, as employees of a provider of essential infrastructure, and therefore required to be vaccinated. This correspondence relevantly advised as follows:
“To ensure you can continue to work you must have your first dose of the COVID-19 vaccine by 12 November 2021 and two doses by 24 December 2021.
I understand that not everyone may be able to be vaccinated. The CHO Direction allows an exemption in the event that a person has a proven contraindication to all available COVID-19 vaccines. The CHO Direction does not provide an exemption for someone who is able to get vaccinated and chooses not to.
…
From 13 November, any employee who has not had their first vaccination will be unable to enter any Power and Water workplace, with swipe card access removed. A workplace includes all sites where Power and Water employees conduct work during the course of their employment.
…
As essential workers who may be recalled from leave to respond to emergency or other events, this requirement includes all employees who are currently on, or will be on leave. Taking leave to avoid vaccination is not an option.
Working from home arrangements, including VPN access, will not be approved for the purpose of avoiding compliance with the CHO direction.”
Mr Stephen Valhovic, Acting Executive General Manager, wrote to the Applicant directing that he provide his vaccination information:
“RE: DIRECTION TO PROVIDE VACCINATION INFORMATION
In accordance with Northern Territory Chief Health Officer "COVID-19 Directions (No. 55) 2021: Direction for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55), on Friday 22 October 2021 the CEO directed all Power and Water employees that they were required to:
a.record their COVID-19 vaccination status in myHR prior to 5 November 2021; and
b.provide their manager with evidence of their COVID-19 vaccination status for verification.
To be clear, it would only be in the rarest of circumstances that the CHO Direction would not apply to an individual in Power and Water. So that I can discharge my duty of care to all workers and others entering our worksites I expect all employees in Power and Water, and particularly those in Power Services, to comply with the CHO Direction.
To enable compliance, on 2 November 2021 the CEO again directed all employees to record their vaccination status in my HR prior to 5 November 2021. The CEO also provided a link and advice to assist employees to enter their status into myHR.
On 8 November 2021 an audit of myHR vaccination information established that you had not yet entered your vaccination status in myHR.
On 8 November 2021your manager Mr Rino Cercarelli advised you that you had not yet recorded your vaccination status in accordance with the CEO's direction. Your Mr Cercarelli asked you if you intended to comply with these directions.
You advised Mr Cercarelli that:
- you had not received your first or second dose of an approved COVID-19 vaccination and did not intend to be vaccinated against COVID-19.
Direction No. 13 of CHO Directions No. 55 provides that a person conducting a business or undertaking must take reasonable steps to determine the extent to which any worker who performs work for the person is vaccinated with an approved COVID-19 vaccination.
Direction No. 14 of CHO Directions No. 55 provides that a worker must, on request by the person conducting a business or undertaking for whom they work, provide evidence the person needs to determine the extent to which the worker is vaccinated with an approved COVID-19 vaccination.
In accordance with CHO Directions No. 55 and my duty of care, as an Executive General Manager, to all workers and other persons entering the Corporation's workplaces, I again direct you to enter your COVID-19 vaccination status into myHR and to provide your manager with the required verification.
If you fail to enter and verify that information by 11 November 2021 you will be directed not to attend your workplace and you will be stood down from your duties until such time as your vaccination status is entered and verified, or I decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993.
Yours sincerely
STEPHEN VALHOVIC
A/Executive General Manager
Power Services”
On 12 November 2021, the CEO wrote to the Applicant directing that he not attend the workplace after 12 November 2021:
“Dear Mr Mobers
RE: DIRECTION NOT TO ATTEND WORKPLACE AFTER 12 NOVEMBER 2021
As Chief Executive Officer (CEO) of Power and Water I direct you not to attend your workplace after midnight on 12 November 2021 because you are unable to comply with Northern Territory Chief Health Officer "COVID-19 Directions (NO. 55) 2021: Direction for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55).
Direction to Advise Vaccination Status
On 22 October 2021 I directed all employees of the Power and Water that they were required to:
a.record their COVID-19 vaccination status in myHR prior to 5 November 2021; and
b.provide their manager with evidence of the COVID-19 vaccination status for verification.
To be clear, it would only be in the rarest of circumstances that the CHO Direction would not apply to an individual in Power and Water. So that I can discharge my duty of care to all workers and others entering Power and Water worksites I expect all employees in Power and Water to comply with the CHO Direction.
To enable compliance, on 4 November 2021 I again directed all employees of Power and Water to record their vaccination status in myHR prior to 5 November 2021.
On 10 November 2021, your Executive General Manager (EGM) wrote to you and directed you to enter your vaccination information into myHR by no later than 11 November 2021. Your EGM also advised you that, if there was any reason preventing you from entering your vaccination information into myHR, or if you had entered your information, but were yet to provide evidence, or receive a response from your manager, you should contact your People and Culture Business Partner.
I have been advised that, as at 12 November 2021 you have not entered your COVID-19 vaccination information into myHR or provided evidence of vaccination to your manager.
Direction Not To Attend Work Pending Further Action
Direction 6 of CHO Directions Nos. 55 provides that, for the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.
Consequently, because records indicate that you are not vaccinated, I direct you not to attend your workplace after midnight on 12 November 2021 and until further notice.
You will continue to be paid until such time as your COVID-19 vaccination information is entered into and/or verified in myHR, or until I commence a formal process to manage your employment under Part 7 (Employee performance and inability) of the Public Sector Employment and Management Act 1993.
I also advise that, if you are unable to return to work after 12 November 2021, and if no suitable alternative duties or arrangements are reasonably available, you may be suspended from your duties, with or without pay. You will not be suspended before receiving further notice from me.
If you wish to discuss this matter then please contact your People and Culture Business Partner.
Yours sincerely
Djuna Pollard
Chief Executive Officer
12 November 2021”
The CEO again wrote to the Applicant on 14 November 2021 as follows:
“Dear Mr Mobers
RE: INABILITY TO PERFORM DUTIES FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION
I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that I suspect that there are "inability or performance grounds" which exist in respect to your employment.
In particular, with reference to sections 44(1) (a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.
Particulars
The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:
(a) You are an ongoing employee of Power and Water Corporation (PWC) working as a Trade Technical in Power Services
Chief Health Officer Directions No. 55 2021
(b) On 13 October 2021 the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55).
(c) CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remains in force
(d) Direction 4 of CHO Directions No. 55 provide that the Directions apply to workers:
(i) who during the course of work, are likely to come into contact with a vulnerable person;
(ii) who are at risk of infection with COVID-19 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;
(iii) whose workplace poses a high risk of infection with COVID-19; or
(iv) who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory; and
(v) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because all PWC employees perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
(e) Direction 6 of CHO Directions No. 55 provides that:
For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.
(f) Direction 10 of CHO Directions No. 55 relevantly provides that
A person conducting a business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.
Direction to Advise Vaccination Status
(g) On 2 November 2021 I:
(i) notified all employees that CHO Directions No.55 applied to PWC; and
(ii) directed all employees to advise me of their vaccination status by no later than 5 November
2021;(h) On 4 November 2021 "Bulletin: COVID-19 - Urgent reminder - Record your vaccination status' was emailed to all PWC employees reminding them to record their vaccination status by 5 November 2021.
(i) On 12 November 2021 you had not declared that you had received the first dose of an approved COVID-19 vaccine and had not done so by 12 November 2021.
(j) On 12 November 2021 I directed you not to attend your workplace after midnight on 12 November 2021 until further notice and that you:
i.would continue to be paid until such time as your COVID-19 vaccination information was entered into myHR and/or verified; and
ii.may be suspended from your duties, with or without pay.
(k) As at 14 November 2021 you had not entered any COVID-19 vaccination information into the myHR Vaccination register or verified.
(l) For the reasons set out in particulars (a) to (k) above, CHO Directions No. 55 requires that you must not attend your workplace, and I must ensure that you do not do so.
(m) I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55.
As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:
1. You are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
2. You are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in particulars (a) to (m) above.
Your submissions should be in writing and must reach me by 4pm Friday 19 November 2021 after you receive this letter.
Suspension Pending Investigation
On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, without remuneration, for a period of three (3) months or until the suspension otherwise ceases in accordance with section 47(4) of the Act.
However, before I take action to suspend you, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from your duties, including whether any suspension should be with or without remuneration. Your submissions should be in writing and must reach me by 4pm Tuesday 16 November 2021 after you receive this letter.
You are not required to attend for duty and you will continue to be paid while you prepare your submissions. I encourage you to take this time to consider and prepare your submissions.
I enclose for your information copies of:
· CHO Directions No. 55,
· Part 7 of the Act;
· Employment Instruction No. 3 - Natural Justice; and
· Employment Instruction No. 6 - Performance and Inability.
Further Information and Available Support
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union or other employee representative.
You may choose an EAP from the list below:
[redacted]
If you wish to discuss this matter then please contact Colin Edwards, Principal People and Culture (Employee Relations) on [redacted].
Yours sincerely
Djuna Pollard
Chief Executive Officer
14 November 2021”
The Applicant was suspended on 19 November 2021:
“Dear Mr Mobers
RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION - DECISION To SUSPEND
I refer to my letter dated 14 November 2021 advising that pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), I suspect that there are "inability or performance grounds" which exist in respect to your employment.
On the basis of the material set out in my letter dated 14 November 202, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. As such, pursuant to section 47 of the Act I foreshadowed an intention to suspend you from duty, without remuneration, for a period of three (3) months or until the suspension otherwise ceases in accordance with section 47(4) of the Act.
I have not received a response to my intention to suspend you without remuneration.
I have now carefully considered the material before me and on this basis and in accordance with section 47 of the Act, I have decided to suspend you from duty without remuneration as I suspect that there are "inability or performance grounds" which exist in respect to your employment.
Whilst I have confirmed my decision to suspend you without remuneration, you will continue on personal leave in line with your current approved leave ending 25 November 2021. Your response to my suspicion that there are inability or performance grounds is due Friday 26 November 2021. If you fail to respond by this time frame I will consider the material before me.
Your suspension will take effect immediately on your delivery of this letter and will remain in place for a period of three (3) months or unless otherwise determined. During your suspension you are directed to not attend any Power and Water site without obtaining permission from your relevant Executive General Manager.
While this inability process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter. To assist in protecting the integrity of this process, you are directed to not discuss this matter with your work colleagues other than your advisor, union or support person.
You may, during the period of this suspension, take any long service or recreation leave to which you are entitled. Please contact your relevant People and Culture Business Partner if you wish to access your long service or recreation leave.
Further Information and Available Support
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union or other employee representative.
You may choose an EAP from the list below:
[redacted]
If you wish to discuss this matter then please contact Colin Edwards, Principal People and Culture (Employee Relations) on [redacted].
Yours sincerely
Djuna Pollard
Chief Executive Officer
19 November 2021”
The CEO further wrote to the Applicant on 1 December 2021, as follows:
“Dear Mr Mobers
RE: INABILITY TO PERFORM DUTIES - CHO DIRECTIONS NO. 55 OF 2021
I refer to my letter dated 14 November 2021 in which I advised you that I had reasonable grounds to suspect that there were inability and performance grounds in relation to your employment, under section 44(1) of the Public Sector Employment and Management Act 1993 (the Act).
My letter invited you to make submissions as to whether you agreed with my suspicion and provide me with any other comments you wished in relation to the matters particularised in that letter. I have not received a response to my letter.
After considering all of the information and evidence, I now make the following findings.
1. Because you have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend Your workplace, and I must not allow you to do so.
2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55 of 2021.
3. As a consequence, I am satisfied on reasonable grounds that there are inability and performance grounds for your employment because:
a. You are not able to perform the inherent duties of your position (for a reason other than physical or mental illness or disability) - under section 44(1)(a) of the Act; and/or
b. you are not suited to perform the inherent duties of your position - under section 44(1)(b) of the Act.
In relation to point 2 above, all Power and Water employees are essential workers as we are a provider of essential infrastructure, which means all employees contribute to the operation or maintenance of essential infrastructure. As such, all Power and Water employees may be assigned alternative duties and may require attendance in the workplace.
Proposed remedial action
Having found that there are inability and performance grounds in relation to your employment, as set out above, I must now consider what is reasonable and appropriate remedial action in the circumstances and in light of the actions available to me under section 46(1) of the Act.
As you have not received an approved COVID-19 vaccination and you have refused to do so, none of the options available under sections 46(1)(a) and 46(1)(b) of the Act including training, reduction in salary, or transfer to alternate duties) will remedy your inability to attend the workplace to perform your duties.
As no other reasonable and appropriate remedial actions are available to me, I consider that the only reasonable and appropriate action available to me is to terminate your employment under section 46(1)(c) of the Act.
However, before I take that remedial action, I invite you to submit to me in writing any reasons why I should not terminate your employment.
Your written submission, if any, must reach me by the close of business Wednesday 8 December 2021. If no response is received within this time, I will make final decision based on the material I currently have.
Please note, this matter remains confidential and should not be discussed in the workplace.
Further Information and Available Support
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union or other employee representative.
You may choose an EAP from the list below:
[redacted]
If you wish to discuss this matter then please contact Colin Edwards, Principal People and Culture (Employee Relations) on [redacted].
Yours sincerely
Djuna Pollard
Chief Executive Officer
1 December 2021”
The Respondent dismissed the Applicant on 15 December 2021 by way of formal letter:
“Dear Mr Mobers
RE: TERMINATION OF EMPLOYMENT - INABILITY TO PERFORM YOUR DUTIES
I refer to my letter dated 24 November 2021 in which I advised you of my findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).
My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why I should not take that action.
As you did not provide any submission in response to my intention to terminate your employment, I have made my decision based on the evidence before me and for the reasons set out in my previous letter.
Having given the matter careful consideration, I maintain my earlier findings that because:
1.You have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and
2.I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021;
You are therefore not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.
Remedial Action
As You have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(1)(c) of the Act.
Notice of Termination
Pursuant to section 46(1)(c) of the Act, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.
In accordance with section 117 of the Fair Work Act 2009 and clause 27 of the 2018 - 2021 Power and Water Enterprise Agreement (the Agreement) you will receive a payment in lieu of being given notice of termination.
Given your age and length of service with Power and Water you are entitled to 4 weeks' notice of termination in accordance with clause 27.1(a)(iv) of the Agreement.
Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged within 14 days after you receive this letter with:
[redacted]
If you would prefer, you may wish to make an unfair dismissal application to the Fair Work Commission. More information is available at: or by telephone to 1300 799 675. Applications to the Fair Work Commission must be on the prescribed form, available on the website, and lodged within 21 days.
Subject to completion of the separation checklist and return of any Power and Water assets you may have, Payroll will process your final entitlements which will include any applicable salary and leave entitlements.
I understand you attended the Mitchell Centre, Power and Water workplace, on 9 December 2021 in contravention of a direction in my letter dated 19 November 2021, confirming your suspension without remuneration. I understand the purpose of the visit was to deliver documents to some Power and Water employees. Notwithstanding your contravention of my direction, I am disappointed that you have potentially put the health and safety of other Power and Water employees at risk with your attendance given your vaccination status remains unconfirmed. Whilst I respect your views in relation to the mandatory vaccination requirement, I am not prepared to put other Power and Water employees at risk and advise that prior to visiting any Power and Water and site in future that you seek approval from the relevant Executive General
Manager.As previously advised, the Employee Assistance Program is available to you. These services are completely confidential.
If you wish to discuss this matter then please contact Richard Baker, Power Services People and Culture Business partner on [redacted].
Yours sincerely
Djuna Pollard
Chief Executive Officer
15 December 2021”
The matter was listed for Hearing by Microsoft Teams on 21 July 2022. The Applicant appeared and gave evidence on his own behalf. Mr Mark Hathaway, Employee Relations Manager, Office of the Commissioner for Public Employment, appeared 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 filed an outline of submissions and witness statement on the Commission’s template documents. The Applicant’s submissions and evidence are summarised as follows.
The Applicant submitted that his dismissal was unjust due to the speed in which it occurred. The Applicant submitted that due to the speed with which it was effected, the Respondent left him unable to have the appropriate medical checks to determine the safety of what was being “demanded of him” as a result of the COVID-19 vaccination mandate.
The Applicant submitted that he has a hereditary condition which makes him susceptible to blood clots. The Applicant also submitted that he suffered ‘acute nephritis’ as a child, which caused damage to his kidneys. The Applicant submitted that his children had been forced to be vaccinated to continue in their workplaces and had suffered adverse reactions including myocarditis and “various other elements that are stated in the pfizer documents that they were forced to produce only recently”.
The Applicant submitted that he had done his own research as early as December 2020 and had determined there were potentially harmful risks of receiving a COVID-19 vaccine. The Applicant submitted that if he could find out about these harmful effects, which were in the public domain, then so could the Respondent. The Applicant submitted that the Respondent failed to carry out their due diligence in this respect, in accordance with their responsibility to provide a safe workplace.
The Applicant submitted that as a result of his research, he submitted a series of questions to the Respondent’s management team relating to the vaccine mandate. The Applicant submitted that he received no response, and that the Respondent ignored all correspondence asking for safety data, including the short to medium and long-term effects of the vaccines. The Applicant submitted that the Respondent also ignored questions about whether the COVID-19 vaccine mandate was a “medical test”, which he stated the Federal Health Minister had confirmed it as being on national television, stating that the COVID-19 vaccine was the “biggest medical experiment ever in the world”.
The Applicant submitted that the Respondent’s lack of interest in providing any response to his “very real concerns” demonstrated to him that anything he said or asked, “was like pissin (sic) in the wind”.
The Applicant argued that the Respondent could have adjusted the employees’ work habits to keep them and others safe, as had been achieved during the first lockdowns in 2020, “at least until there was further safety data available”. The Applicant stated:
“i am not anti vax i am anti stupid”.
Further, the Applicant submitted that his dismissal was effected while he was on a period of personal leave “from and including 25/11/2021”. The Applicant submitted that this leave was to enable himself to have various tests, so that he could be better informed of his personal condition and situation regarding the COVID-19 vaccines. The Applicant noted that at that time, doctors’ appointments were extremely hard to get which impacted his ability to have tests done. The Applicant submitted that despite this leave, he was suspended by the Respondent the following date (26 November 2021). The Applicant submitted that in effecting his dismissal on 15 December 2021, the Respondent had no consideration to his personal medical conditions.
Any opportunity to respond
The Applicant submitted that “no communication was forthcoming all that was conveyed was threats of losing your job due to a failure to comply with [CHO Direction No. 55]”.
Effects of his termination
The Applicant submitted that at the time he was stood down, being a Friday, he had been preparing for, and was ready to carry out, a ‘priority job’ on the Sunday evening. The Applicant submitted that he was told not to bother coming in and, due to this haste, he was left feeling insignificant. The Applicant submitted that this incident had significantly impacted his mental health.
Further, the Applicant submitted that the loss of his job had caused him considerable financial hardship, which was particularly harsh in light of his age. The Applicant submitted that working for the Respondent had been a key part of his retirement plan.
Remedy
The Applicant seeks reinstatement to the same position, and with his benefits retained. The Applicant seeks compensation for lost wages, including an allowance for overtime. The Applicant seeks an order for return of all leave that was used or lost, including accrued sick leave, long service and recreational leave. The Applicant also seeks compensation for money he accessed from his superannuation to keep himself ‘afloat’.
The Applicant estimated an order for compensation to be $300,000.00, accounting for backpay and all other associated reimbursements, the reimbursement of used superannuation plus an allowance for stress, hardship, loss and mental trauma.
Steps taken to find another job
The Applicant submitted that while he had made enquiries about employment, his vaccination status was always raised. The Applicant submitted that constantly being told he was ‘unworthy’ had led to him becoming depressed.
Respondent’s Submissions
Valid reason
The Respondent submitted that there was a valid reason for the Applicant’s termination, as follows.
The Respondent submitted that the CEO was obliged, as a person conducting a business or undertaking, to implement CHO Direction No. 55. The Respondent submitted that while the CHO Directions applied to all workers and all persons conducting businesses or undertakings in the Northern Territory, they had a particular application to Power and Water in that it was an “enterprise providing essential infrastructure” as per item 4 in the Schedule to CHO Direction No. 55. The Respondent submitted that the relevant Directions were Directions 6 and 7, which provided:
“6. For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker’s workplace.
7. On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker’s workplace.”
The Respondent submitted that Directions 8 and 9 qualified Directions 6 and 7 as follows:
“8. Despite directions 6 to 7, a worker may attend the worker’s workplace without being vaccinated with an approved COVID-19 vaccine if the worker has evidence of a contraindication to all approved COVID-19 vaccines.
9. The evidence required for direction 8 is one of the following certificates:
(a) a medical certificate issued by a medical practitioner that certifies that the worker has a contraindication to all approved COVID-19 vaccines determined in accordance with the Clinical Guidance on use of COVID-19 vaccine in Australia in 2021, or any successor guidelines issued by the Australian Technical Advisory Group on Immunisation (ATAGI);
(b) a certificate issued by the Commonwealth that certifies that the worker has a contraindication to all approved COVID-19 vaccines.”
The Respondent submitted that the lawfulness and validity of the CHO Directions or similar public health directions and the implications for employees being able to perform the inherent requirements of their jobs has been accepted by the Commission as a valid reason for termination in a number of cases.
The Respondent submitted that for a reason for dismissal to be valid, it must be sound, defensible or well founded and not capricious, fanciful, spiteful or prejudiced.[1] The Respondent submitted that on an objective assessment of the facts, taken in the entirety of its context, the Commission should find that the CEO had a valid reason for the termination of the Applicant’s employment. The Respondent submitted that the reason was not related to the Applicant’s conduct in the workplace or to his competence in performing his duties, but was related to his capacity to perform the inherent requirements of his job because without the necessary evidence of his vaccination status or a contraindication to all approved COVID-19 vaccines, the CEO was unable to allow him to enter the workplace or otherwise assign him to a workplace that was not covered by the CHO Directions. The Respondent submitted that termination of the Applicant’s employment was the only practicable outcome to the Applicant’s failure or unwillingness to provide the Respondent with the required information regarding his vaccination status.
Notification of that reason
The Respondent submitted that the CEO notified the Applicant of the reasons for his termination on multiple occasions, not just the letter of termination. These notifications were present in the text of the two following letters to the Applicant:
a.in a letter dated 14 November 2021 (extracted at paragraph [14] of this decision); and
b.in a letter dated 1 December 2021 (extracted at paragraph [16] of this decision).
Opportunity to respond
The Respondent submitted that the CEO provided the Applicant with the opportunity to respond to the likely dismissal in the following:
a.the CEO invited the Applicant to respond to her in writing by 4.00 pm, Friday 19 November 2021; and
b.on 1 December 2021, the CEO invited the Applicant to provide submissions in writing to her foreshadowed decision to terminate his employment by close of business, Wednesday, 8 December 2021.
The Respondent submitted that the Applicant did not exercise the opportunities to respond to the reasons for his dismissal.
Unreasonable refusal to allow the person to have a support person
The Respondent submitted that there were no discussions relating to the dismissal, therefore, s.387(d) of the FW Act is not applicable in this case.
Warning about unsatisfactory performance
The Respondent submitted that the Applicant was not dismissed due to unsatisfactory performance, rather his inability to perform the inherent requirements of his job due to his exclusion from the workplace following his failure or unwillingness to provide the Respondent with evidence about his vaccination status or contraindication to all approved COVID-19 vaccines. The Respondent noted that the CEO warned the Applicant about the consequences of not providing this information on multiple occasions. The Respondent, therefore, submitted that the decision to dismiss the Applicant should not have come as a surprise.
Size of the employer’s enterprise and human resource specialists
The Respondent submitted that it is a large employer and has dedicated human resource management specialists. The Respondent submitted that it had the capacity to manage the procedures relating to the dismissal, and that sections 387(f) and (g) do not apply in this case.
Any other matters
The Respondent submitted that throughout the process associated with his dismissal, the Applicant failed or was unwilling to respond to the process or provide the CEO with information or submissions about either his vaccination status, a contraindication or health concerns. The Respondent submitted that the only evidence was an indirect quote attributed to the Applicant in a conversation between him and his manager, Mr Rino Cercarelli, on 8 November 2021:
“You advised Mr Cercarelli that:
you had not received your first or second dose of an approved COVID- 19 vaccination and did not intend to be vaccinated against COVID-19.”
The Respondent submitted that in the absence of the Applicant’s engagement in the inability process, it was difficult for the CEO to make any decision other than one that was made, noting the CEO’s obligations under CHO Direction No. 55.
The Applicant’s contentions
While the Applicant raised concerns about the date of his letter of termination and the date he actually received it, the Respondent submitted that there could have been a delay in sending this letter to the Applicant, but this issue is not a relevant consideration in this particular case because the Respondent has not lodged a jurisdictional objection to the application proceeding. Further, while the Applicant has made reference to a text notifying him of his dismissal, the Respondent submitted it could not comment on whether the Applicant received any text, however the Respondent relied on the formal letter of termination dated 15 December 2021.
While the Applicant has argued that there was ‘no communication forthcoming’, the Respondent submitted that this contention is not supported by the documentary evidence before the Commission.
Despite the above, the Respondent noted that the Applicant has submitted that he did receive communication which was “conveyed” via “threats of losing his job due to a failure to comply with the CHO Direction No. 55”. The Respondent submitted that the CEO had a duty to ensure that the Applicant was aware that if he failed to comply with CHO Direction No. 55, this may result in termination of the Applicant’s employment. The Respondent submitted that the obligation to ensure the Applicant was aware of this possible outcome should not be construed as a threat, irrespective of the Applicant’s subjective perception of the process and the communications associated with it.
As to the Applicant’s submission that the Respondent was requiring him to put a dangerous and untested substance into his body, the Respondent submitted that neither the Applicant nor the Respondent are qualified to comment on the safety or the testing regime associated with the production and distribution of the approved COVID-19 vaccines. The Respondent submitted that the appropriate individuals and organisations, such as the Chief Health Officer, the Therapeutic Goods Administration and the Australian Technical Advisory Group on Immunisation that tested and approved the COVID-19 vaccines, are charged with determining their safety. The Respondent submitted that, as non-experts, the Applicant, the Respondent and the CEO needed to be guided by the clinical advice and direction from the recognised experts.
The Respondent submitted that there were options available to the Applicant for him to obtain appropriate evidence of any contraindication that he may have had to all the approved COVID-19 vaccines. However, the Respondent submitted that as far as the evidence led by the Applicant suggests, he declined to do so.
While the Applicant objected to the speed of the implementation of the CHO Directions by the Respondent and the inability process that resulted in termination of his employment, the Respondent accepted that there was a degree of urgency associated with the implementation of the CHO Directions across the Northern Territory Public Sector. However, the Respondent submitted that urgency arose from the CHO Directions and the particular evidence that the CEO needed to collect from employees to ensure the Respondent’s compliance with those directions. Notwithstanding the speed of the process, the Respondent submitted that the Applicant was advised of the requirement to provide the CEO with evidence of his vaccination status or contraindication to all approved COVID-19 vaccines by particular dates. Further, the CEO afforded the Applicant the opportunity to make submissions about the process and his foreshadowed termination. The Respondent submitted that the speed of the process should not be determinative of the Commission’s decision in this case, and cited the decision of Deputy President Clancy in Aucamp v Association for Christian Senior Citizens Homes Inc.[2]
As to the Applicant’s period of personal leave, the Respondent submitted that the urgency associated with the need to implement the CHO Directions required the CEO to act while the Applicant and other employees were on periods of leave. The Respondent submitted that these actions would ensure that when an employee were to return from leave, that employee would be able to attend the workplace.
The Respondent accepted that termination of an employee’s employment is hard and that it has negative consequences for the affected person, including for the Applicant in relation to his age. However, the Respondent submitted that the Applicant exercised his right not to provide evidence of his vaccination status or evidence of a contraindication to all approved COVID-19 vaccines. As a result, the Applicant was terminated due to his non-compliance with CHO Direction No. 55. The Respondent submitted, that in this regard, the Applicant’s comments about the prospect of losing his job show that he understood the difficult consequences of these choices.
Finally, the Respondent submitted that while the Applicant’s witness statement demonstrates a fundamental distrust of government, this does not provide an effective argument challenging the validity of his termination nor the fairness of that termination.
For all of the above reasons, the Respondent submitted that no remedy should be granted to the Applicant. The Respondent submitted that there was a valid reason for the Applicant’s dismissal, and the dismissal was fair and reasonable in its execution.
Applicant’s Submissions in Reply
The Applicant disputed all matters raised in the Respondent’s submissions.
The Applicant submitted that the CHO had “admitted in court that he had kept no , nil, notes on with which he had made his directions on”, which proved that his directions were “unlawful , immoral , discrimitary (sic) and with no medical , scientific or safety data to back them up”.
The Applicant maintained that he had, on two occasions, written to the CEO requesting safety data relating to the COVID-19 vaccines but had received no answer. The Applicant maintained that this demonstrated negligence on the part of the Respondent, and total disregard for the Applicant’s legitimate concerns.
The Applicant submitted that the COVID-19 vaccines are not vaccines, rather a “bio weapon”. The Applicant maintained that the vaccines were experimental only, and that this information was available to the Respondent well before his dismissal was effected. The Applicant submitted that the necessary safety and efficiency tests were not carried out, and the direction for him to become vaccinated was made with threats, bullying and coercion.
The Applicant maintained that he had done his research and had a very real and proven concern about receiving a COVID-19 vaccine.
The Applicant submitted that for all of the above reasons, his dismissal was neither fair nor reasonable.
Consideration
I have taken into account all of the submissions that have been provided by the parties. 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)[3] 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)[4] 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:[5]
“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,[6] 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)[7] 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.”
Having previously worked as an Electrical Fitter/Mechanic with a High Voltage accreditation in the New South Wales electricity distribution industry, I have first hand knowledge of the type of work that the Applicant was performing. I accept the argument that a significant proportion of the Applicant’s role could be performed where he would not come in contact with a vulnerable person, but it cannot be argued that the Applicant was not working on essential infrastructure. The electricity distribution network is an essential service to the Northern Territory community. I am satisfied and find that CHO Direction No. 55 applied to the Applicant.
I am satisfied and find that the Applicant, by not being vaccinated by 13 November 2021, could not perform the inherent requirements of his role as a High Voltage Electrical
Fitter/Mechanic.
As a result, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.
Section 387(b) – Notified of the reason
While the Applicant submitted that “no correspondence was forthcoming”, he has also submitted that he received ‘threats of dismissal’ if he was not vaccinated. It is clear on the evidence before the Commission, and the correspondence extracted at paragraphs [12]-[17] of this decision, that the Applicant was notified of the reasons for his dismissal.
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 inability process was insufficient, the Respondent clearly granted the Applicant opportunities to provide his responses as views, as demonstrated by the correspondence extracted at paragraphs [12]-[16] of this decision. However, the Applicant did not avail himself of this opportunity to respond.
I am satisfied that the Applicant had ample opportunity to respond to the matters leading to his termination, however, chose not to provide any response.
Section 387(d) – Refusal of a support person
On the evidence, no meetings were held ahead of the Applicant’s termination, accordingly this factor 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 is a large employer and had the benefit of dedicated human resource specialists.
Section 387(h) – Any other matters
I accept that the Applicant had significant and real concerns over the possible side effects of the COVID-19 vaccinations on his health, particularly in relation to possible blood clots. The Applicant claims that research he undertook for his son, who has the same predisposition, proved to him that the vaccines were not safe to be administered in his circumstance.
Whilst the Applicant is obviously intelligent, he is not a medical practitioner. The Applicant, armed with his research, should have seen a doctor to seek a contraindication in accordance with CHO Direction No. 55. Following this process was the only way for the Applicant to obtain an exemption from the Direction.
The Applicant claimed that there was insufficient time to gain an exemption. Whilst I accept that the timeframes may have been tight, the Applicant had already undertaken his detailed research for his son, many months before October 2021. Further, by not responding to the Respondent’s correspondence, when specifically asked, the Applicant ignored the opportunity to state his case in relation to his medical issues and the need for more time. The lack of communication by the Applicant is not the fault of the Respondent.
At the Hearing, the Applicant read out an email that he sent to the CEO on 3 November 2021 (marked as Exhibit 2 in the proceeding). This email was provided to Chambers by the Respondent following the Hearing. The email reads as follows:
“I am writing this as an open letter to you to express my absolute disgust with what is occurring. I have a number of issues that I want you to know about as well as some questions that I require answers to.
As employees of Power and Water, we are all expected to be inclusive, respectful and provide a safe working environment. This includes communicating in a way that is in line with our values and behaviours. Bullying, harassment and threats should not be accepted in this workplace.
The CHO’s directives are given in the manner of threats, intimidation, and bullying. How can you, as the leader of our workplace support this method and mantra of “you will do what I tell you or else”. You have by way of your compliance to this directive accepted that to threaten, bully and intimidate people who have legitimate safety concerns is ok. Is forcing an injection into someone that they don’t believe is safe, at the risk of losing their job the way a true leader would act?
When any task or action is to be attempted the very first thing to be considered is safety. This is done through a varied step approach with the first being a discussion between all parties involved, with all safety concerns listened to taken into account. These concerns are then discussed.
Steps are then taken to prevent any danger being present at best, or mitigate to an acceptable level at worst. This can only be successfully accomplished when all the information is available and confirmed as being correct.
If, at any time additional information becomes available or the situation changes, a rethink is required with changes made to accommodate any new threats or issues. There is also the ability for any of the parties or people involved to, at any time to stop the process if they have a safety concern. This is then discussed and dealt with by all involved. The decision to then move forward is only to be made when all parties are convinced that it is safe to do so.
What has been directed at us here at Power and Water contains none of that. There has been no discussion and no listening to any concerns. Much of the mainstream information is at best misleading and at worst absolute lies. Information has been, and is continually being censored.
The federal government has completely negated its responsibilities to the people, leaving it up to the Chief Minister and the CHO to make decisions and directions which make no sense, which they give very little explanations or reasons for.
If this was truly about our health there would be no reason to be threatening, abusing, belittling or discriminating against those of us who do not want to take these experimental injections.
As you know vaccine manufacturers have no liability for adverse effects, personal damage or death caused by their products. As your name is on the email that directs us to get the jab, is it not you who will be liable for any negative impacts to the health and safety of anybody who is forced to get this jab?
If you are comfortable with that situation, so be it. It may be something to note that during the Nuremburg trials after the Second World War, the excuses of “I was only doing my job”, “I was only following orders”, “I didn’t know”, were tried and not found to be acceptable. Also as we are in a state of emergency, if there is anything done during this period which is later found to need to go to a court so as to decide if it was lawful or morally acceptable, it’s not a Magistrates Court nor the Supreme or Federal court that will be used. It will be conducted in a military court where punishments can be far greater than civilian courts.
How I see this, is for those who agree with what is going on, they are complicit in a criminal act. Those who have influence and the power to say or do something to stop this yet chose to remain silent, they are even more guilty of this criminal act.
I have these questions for you.
Could you please provide the actual legislation and appropriate laws / act and number, where it is stated that I must provide my personal medical details to anyone who requests or demands them?
Can you please provide the legislation and subsequent laws which give the CHO the power and right to direct a person to have a medical procedure? I’ll note the Public and Environmental Health Act and Commonwealth Bio Security Act only allow forced medical treatment to be given to a named individual, who is showing symptoms, not to a blanket group of people.
Can you please provide the legislation and subsequent Work Health and Safety laws that pertain to this situation if any side effects, personal damage, loss of work time or even death occurs? Will this be classified as a workplace injury?
Could you please provide the complete MSDS for the vaccines as well as substantial scientific evidence that the vaccines are safe, effective and necessary? Are any other products being used to combat the virus known as covid 19 that could be used instead of this vaccine?
Finally, can you please provide a copy of the insurance cover you will be using as protection for myself if I was to suffer any type of injury due in any way from getting this jab?
Thank you for your time
Kind regards
Mark mobers”
I note that this correspondence does not answer the Show Cause letter sent to the Applicant.
As I indicated to the Applicant during the proceeding, the Commission does not have the necessary jurisdiction to determine the lawfulness or otherwise of CHO Direction No. 55. Relevantly, the question is within the jurisdiction of the Northern Territory Supreme Court, at first instance. In Kassam v Hazzard,[8] 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 Public Health Order in the Northern Territory expired at 11.59pm on 15 June 2022. At that Hearing, I asked the Respondent whether the Applicant’s role was still vacant and whether the Applicant could be re-employed by the Respondent. Mr Edwards, the Human Resources Manager for Power and Water, undertook to investigate if any available positions existed which matched the Applicant’s skills and competencies. Mr Edwards provided this information to both the Commission and the Applicant on 2 August 2022. I thank Mr Edwards for his assistance.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant.
I find that there are no identified issues in relation to section 387(b)-(h) which would identify an injustice which would result in the Applicant’s termination being defined as harsh, unjust or unreasonable.
The Applicant has been afforded his statutory right to a fair go.
I find that the Applicant was not unfairly dismissed.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
[2] [2021] FWC 6669.
[3] (1995) 185 CLR 410.
[4] (1998) 84 IR 1.
[5] (1995) 62 IR 371.
[6] PR4471.
[7] (1998) 84 FCR 483.
[8] [2021] NSWSC 1320 at [68].
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