Mrs Linda Bernadette Eres v
[2022] FWC 2793
•3 november 2022
| [2022] FWC 2793 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Linda Bernadette Eres
v
The Commissioner for Public Employment
(U2021/12354)
| COMMISSIONER RIORDAN | SYDNEY, 3 november 2022 |
Application for an unfair dismissal remedy
On 26 December 2021, Mrs Linda Eres (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) by letter dated 6 December 2021, which the Applicant received on 7 December 2021. The Applicant was dismissed on the basis that she was not able to perform the inherent requirements of her job.
The Applicant recommenced employment with the Respondent on 31 May 2018. At the time of her dismissal, the Applicant was employed as a Records Officer, Administrative and Corporate Services Band 1 with the Power and Water Corporation (PWC). The Applicant’s employment was covered by the 2018 - 2021 Power and Water Enterprise Agreement.
The Applicant seeks compensation as the remedy for her unfair dismissal.
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 issued COVID-19 Direction (No. 55) 2021 (CHO Direction No. 55) directing for mandatory vaccination of workers to attend the workplace:
“Public and Environmental Health Act 2011
COVID-19 Directions (No. 55) 2021:
Directions for mandatory vaccination of workers to attend the workplace
I, Hugh Crosbie Heggie, Chief Health Officer, under section 52 of the Public and Environmental Health Act 2011 (the Act), consider it necessary, appropriate or desirable to take action to alleviate the public health emergency in the Territory, declared by instrument entitled “Declaration of Public Health Emergency”, dated 18 March 2020, (the public health emergency declaration), by making the following directions:
Part 1 Preliminary matters
These Directions take effect at 12:00 (noon) on 13 October 2021 and remain in force while the public health emergency declaration is in force.
Note for direction 1
These Directions will remain in force during any subsequent extensions of the direction of that declaration, which may be made under section 50(2) of the Act.
In these Directions:
Approved means approved by me.
Person conducting a business or undertaking, see section 5 of the Work Health and Safety (National Uniform Legislation) Act 2011.
Vulnerable person, means a person who is considered, under direction 3, to be vulnerable to infection with COVID-19.
Worker, see section 7 of the Work Health and Safety (National Uniform Legislation) Act 2011.
A person is considered to be vulnerable to infection with COVID-19 if:
(a)The person is under 12 years of age; or
(b)The person cannot be vaccinated with an approved COVID-19 vaccine due to a contraindication to all approved COVID-19 vaccines; or
(c)The person is an Aboriginal person; or
(d)The person is at risk of severe illness from COVID-19 for medical reasons, such as being on immune suppressive therapy after an organ transplant or having chronic kidkey, heart, liver or lunch disease.
Note for direction 3
For more information on vulnerable persons see:
>These Directions apply to the following workers:
(a)a worker who, during the course of work, is likely to come into contact with a vulnerable person;
(b)a worker who is at risk of infection with CoVID-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.
Note for direction 4(a)
To determine whether a person is a vulnerable person, a worker can ask the person directly or assume they are vulnerable if the worker is unsure. If a person does not disclose their vaccinate status to a worker, the worker should assume the person is vulnerable.
The provisions of the Schedule are to be used in determining whether these Directions apply to a worker under direction 4.
Part 2 Vaccination for attendance at workplace
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.
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.
Note for direction 7
It is expected that a third dose will be required for these workers in 2022. These Directions will be amended to add that requirement when the medical advice is more definite.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.
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 vaccines 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.
Note for direction 9(a)
For the ATAGI guidelines current at the time of making these Directions see:
A person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the worker’s workplace contrary to directions 6 and 7.
Nothing in these Directions prevents a worker who is not vaccinated as specified in directions 6 and 7 or exempt from vaccination under direction 8 from working at a place where the worker, during the course of work:
(a)Is not likely to come into contact with a vulnerable person; and
(b)Is not likely to come into contact with a person or thing that poses a risk of infection with COVID-19; and
(c)Is not likely to be exposed to a high risk of infection with COVID-19.
Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7.
Example for direction 12
Directing the worker to attend another workplace where the worker is not likely to come into contact with a vulnerable person to be exposed to a high risk of infection.
Part 3 Verification measures
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 vaccine.
Note for direction 13
This involves determining whether the worker is fully vaccinated, has received a first dose or is unvaccinated. Viewing a completed appointment slip or a medical certificate for the first dose or a digital certificate for full vaccination on a mobile phone would be sufficient. See also: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 vaccine.
A person conducting a business or undertaking must keep a register of the following information:
(a)The extent to which each worker who performs work for the person is vaccinated with an approved COVID-19 vaccine;
(b)The steps taken to comply with direction 13.
A person conducting a business or undertaking must provide access to the register to me or an authorised officer on request.
For these Directions, a person conducting a business or undertaking and an authorised officer may request, collect, use and disclose immunisation information that is protected information under section 22(2) of the Australian Immunisation Register Act 2015 (Cth).
Notes for COVID-19 Directions
1.Section 56 of the Act provides for an offence for failing to comply with a direction given by me under section 52 of the Act.
2.The maximum penalthy for this offence is 400 penalty units.
3.A person is not guilty of this offence if the person has a reasonable excuse.
4.An infringement notice may be given for failing to comply these Directions with a fine equal to 32 penalty units for an individual and 160 penalty unites for a body corporate.
Chief Health Officer”
[Schedule omitted]
(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 their workplace. On and from 24 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend their 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 PWC, wrote to all PWC employees confirming the information provided by the Commissioner for Public Employment.
On 2 November 2021, the CEO sent an email to all PWC employees advising that:
“All Power and Water employees and contractors are essential workers and must be vaccinated. In line with the Chief Health Officer (CHO) Direction, we are a provider of essential infrastructure, which means all of us contribute to the operation or maintenance of essential infrastructure.
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.”
(My emphasis)
The Applicant wrote to the CEO on 3 November 2021, raising various questions as follows:
“Dear Djuna,
RE: Mandating Offer of Medical Services
I have been employed by Power & Water since 2006, first on the ICT Help Desk, then briefly for Water Services and currently with Records Management. I briefly left for about a year in 2018 to spend time with my 93 yearold mother and returned a year later, after she passed away. Prior to this, I was employed by the NTG DCIS in IT. We were outsourced to CSC and CSG, before I decided to return to the NTG for job security. Prior to this I was in the NTG for 22 years. I have been with PWC, 11 years. I am a mother of 3 and a grandmother of 5. Of utmost importance to me is my job security and safety of my family.
I have enjoyed working with Power & Water up to now, as it has provided the security and safety of my health and well-being both physically and mentally. I appreciate the fact that we are offered solutions as well as offered courses relating to work, health & safety to look after my physical and mental health.
I pride myself in my work, I am conscientious, focused & committed to the Power & Waters Purpose and Vision and Values and Behaviours.
I am not an anti-vaxxer, I am fully vaccinated, and so are my children and my grandchildren. One of my grandson’s is a special needs child, who is immuno-compromised, but he has had all of his vaccinations.
I am seriously concerned about the safety of the COVID19 vaccines namely the Pfizer, AstraZeneca and Moderna vaccines, posing potentially serious risks to my health and possibly my life. In the development of these vaccines, there wasn’t and hasn’t been enough research done into the effects these vaccines will have on our health. There hasn’t been any long term testing, and this is the reason myself and my family do not want to get the vaccines.
There is a vaccine that is in developmental stage, called Novavax, and is due to be available soon. I am aware that this vaccine is developed without the mRNA technology and in the more traditionally way. I feel this will be a better option for me and my family. I would like to ask for time to wait for this vaccine, and if I consider it being safe for my health, I will willing be vaccinated, rather than get vaccinated with the Pfizer, AstraZeneca and Moderna vaccines.
I respect that Power and Water is an essential service to all Territorians, but in my case, my job, I am not a frontline worker, I do not come into contact with any vulnerable people. I also would like to point out that if you decide that I am essential. And I pose a risk to my co-workers, the technology is there for me to perform my job from home. There is no reason why I cannot perform my job working from home, as were allowed to do this from the start of the pandemic and during lockdowns. Considering that the un-vaccinated and vaccinated can spread the virus, I would like to ask what is the point in separating the unvaccinated.
My husband and I both work for the NT Government, the Chief Minister’s directive has caused extremely immense anxiety and stress on our livelihood, so much that we have both had to make appointments to see EASA counsellors. This is all due to the fact that we are being threaten with being stood down, and the potentially losing of our jobs, because of our choice not to get vaccinated. We have done our research on the potential serious risks to our health and possibly our lives. We are concerned for our health and safety not only of our lives, but our children’s and our grandchildren.
This has affected all of our family, as all of our children have been told that they have to get vaccinated or they lose their jobs. My husband and I are preparing to sell our house, so we can support our children. This is the real effect of what this is doing to un-vaccinated Territory families, and it seems this government don’t care less. All this government is worried about, is getting everyone vaccinated. As far as I am concerned you are all, forcing us to take these vaccinations against our will, with the loss of our livelihoods. Does anyone in this government have any compassion for the people who live in the Territory? My children, are extremely stressed, that they will lose our jobs and are considering getting the vaccine against their will. We are all worried about what will happen to their children, if we take these vaccines, and there are potential serious risks to our health and possibly our lives. WHO is going to take care of their children, and our grandchildren? My sister and her husband had the vaccine against their will, to keep their jobs, this is the sad reality for thousands of un-vaccinated Territorians, who need to keep their jobs.
Below is a couple of links showing data related to adverse reactions, and why I am so hesitant to take the current vaccines available in Australia.
TGA: reactions reported: 74,380
Deaths reported: 629
Deaths’ confirmed: 9US CDC: Vaccine Adverse Events Reporting System (VAERS)
reactions reported: 837,595
Deaths Reported: 17, 619WHO: (VigiAccess) - @ of 1/11/21: 2,403, 628 adverse reactions have been reported from Covid-19 vaccines.
UK Government technical briefing report (pg 19 and 20) and the Public Health Scotland Report (pg 44) both show the vast majority of total deaths are in those that are fully vaccinated.
We are all aware that these vaccines are a potentially dangerous to our health with serious side effects such as Myocarditis, thrombosis with Thrombocytopenia and Guillaine-Barre syndrome. There is the potential of Antibody Dependant Enhancement (ADE) over a longer term, which long term safety data will show.These figures show that there is a potential risk to my and my family’s health or even death if I we are forced into taking one of the currently available vaccines.
According to the Public and Environmental Health Act 2011 – COVID-19 Directions (No.55) 2021: Directions for mandatory vaccination of workers to attend the workplace –
Part 2 - 12 - states ‘Nothing in these Directions prevents a person conducting a business or undertaking, from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7’. I therefore am respectfully asking that you consider the option of working from home.
I refer to your email dated the 22 October 2021 stating that Power & Water employees are required to provide evidence of their vaccination status prior to the 5 November 2021.
Therefore, it is with absolute respect, I am pleading for you to please look into this as a matter of utmost importance, and to assist in the plight for the freedom of choice over my own body.
It is saddening and disappointing that the NT Government has taken this dictatorial stance.
If I were able to freely choose, I would not choose to being injected with any of the currently available Covid 19 vaccines.
The NT Government is interfering with my freedom to decline a Covid 19 vaccine by threatening me with loss of employment if I do not provide evidence that I have been injected with a Covid 19 vaccine.
With respect, I would be most grateful if you could please provide me the following information in accordance with the statutory legal requirements.
1. Can you please advise me of the current legal status, of the currently available Covid-19 Vaccines and whether they are experimental?
2. Can you please provide details and assurances, that the required drug has been fully independently and rigorously tested against control groups, and the subsequent outcomes of those tests?
3. Can you please advise a full list of the contents of the required drug that I am to receive, and if they are toxic to the body?
4. Can you please fully advise of all the adverse reactions associated with the required drug since its introduction?
5. Can you please confirm the required drug you are advocating is not, experimental mRNA gene altering therapy?
6. Can you please confirm I will not be under any duress from yourself as my employer in compliance with the Nuremburg code?
7. Can you please advise me of the likely risk of fatality should I be unfortunate to contract Covid19 and the likelihood of recovery?
With respect, I would like to ask the following questions:
1. Can the NT Government provide a Risk Assessment, that shows an unvaccinated person is more of a threat and more of a risk than a vaccinated person being in the workplace. Considering both vaccinated and unvaccinated spread the virus, I question why I am being discriminated against. (Fair Work have advised that a Risk Assessment is required by law and must be done at the actual physical workplace itself).
2. Can the NT Government provide the vaccine MSDS. (Fair Work have confirmed that it is law for a workplace to provide a MSDS). MSDS stands for: Material Safety Data Sheet. The MSDS lists the hazardous ingredients of a product, its physical and chemical characteristics and its effect on human health. The FDA approved vaccines manufactured by Pfizer/BioNTech, Moderna, and Janssen / Johnson & Johnson) must provide fact sheets. The fact sheets must provide up-to-date information on the injections and their ingredients; vaccine recipients must also receive information about adverse events. Has the NT Government read, understood, and provided all its employees with these fact sheets and current information on adverse events so that its employees can make an educated decision in regards of whether to take the vaccine?
3. Can the NT Government provide substantial scientific evidence to prove the mandatory vaccines are safe, effective and necessary? (As an aside, the TGA - Therapeutic Goods Administration - was asked this by Fair Work but the TGA could not provide it).
4. Can the NT Government confirm in writing that by mandating a vaccine they are liable to their employees for any adverse event suffered by that employees and are willing to provide adequate compensation to each employee in each instance of an adverse event, and with that the full details of the compensation that they are willing to pay to each employee? (For real, actual cases of adverse events recorded by the CDC to date please see the attached file. This dataset was extracted from the VAERS CDC website today – 25th October, 2021. For more information visit: (The list of different adverse side effects in the attached file as a result of taking the COVID19 vaccine, and the number of events caused, are quite extensive). It is currently unclear if employees in the NT Government will be adequately compensated by the NT Government of any adverse events from taking the vaccine.
5. There is uncertainty about whether vaccinations and vaccine injuries are covered by occupational health and safety legislation and whether the relevant workers’ compensation scheme in my State or Territory will apply or be adequate in the case of taking a COVID19 vaccine. If this can be clarified by the NT Government.
6. A lack of adequate safety and efficacy data, would mean the employer is simply not in a position to assess the risks and benefits of vaccination, nor the extent of their liability for compensation if an employee is injured as a result of taking the vaccine. Is the NT Government aware of this?
7. Pressures from government as a whole on employers, raises concerns that the NT Government may not give fair consideration to an employee’s medical exemption (if applicable), and may discriminate, bully and/or take adverse action against an employee and cause duress at the prospect of potentially losing their job if they refuse the vaccine. Will employees in the NT Government lose their jobs if they refuse this vaccine? Will employees in our Work Unit for example, lose their jobs if they refuse this vaccine?
Once I receive the above information in full and I am satisfied that there is no threat to my health, I will be happy to accept your offer to receive treatment but with certain conditions namely that;
You confirm that I will suffer no harm.
1. Following acceptance of this offer it must be signed by a fully qualified doctor, who will take full legal and financial responsibility for any injuries occurring to myself and or from any interactions by authorised persons regarding these procedures.
2. In the advent I should have decline the offer of the required drug, please confirm that it will not compromise my job and that I will not suffer prejudice and discrimination, as a result. I would also like to advise that my inalienable rights are reserved.
Further-more, I would like to refer to the Our Plan for Power & Water Corporation and the Strategic Pillars.
As part of our My Plan, I am required to complete courses such as:
Conversations for Life
COVID-19 Awareness Induction
Cross Cultural Program
Asbestos Awareness
Environmental Awareness
Health and Safety Awareness
Our Safety Culture
Personal Protective Clothing and Equipment
PWC Alcohol and Other Drugs
PWC Code of Conduct
PWC Workplace Bullying and HarassmentThese courses are mandatory, and are to educate employees and to keep us safe from both physical & mental harm.
Considering that Power & Water make it mandatory of all employees to complete these courses to keep us safe, I would like to refer specifically to the below:
1. ALWAYS BE SAFE – Power and Water puts it’s people and customers safety first in all that it does;
If all of my above questions cannot be answered regarding the safety of the vaccine, do you think mandating the vaccine against my will, coincides with the Strategic Pillars to always be safe?
2. ONE POWER AND WATER – Operate as one Power and Water - Power & Water is committed to Implementing its Operating Model and uplifting its culture to become fit for the future.
Do you think that implementing these measures will uplift the culture of employees, and this will not cause separation amongst the vaccinated and unvaccinated and keep us safe from discrimination in the future if I am still employed by PWC? Further-more long time PWC employee, where is my Equal Opportunity to continue to work for PWC, it seems to me that this opportunity is only available to vaccinated employees if we are stood down or dismissed.
Further-more I would like to know why the following measures taken at the start and height of the pandemic and during lockdowns to keep us safe no longer applies;
3. Working from home – why is this option no longer available for the unvaccinated when we have the resources to work from home if you think I am in danger of spreading the virus to the vaccinated
Wearing of masks
Social distancing
Office setup so that we are 1.5 metres from each otherAs mentioned above, I understand that Power & Water provide essential services to Territorians, and that is why we are all required to be vaccinated. I am not a frontline worker, my job is to assess the corporation’s files and information for disposal, therefore, I am able to work from home if the option is available. I would like to make a request that the working from home option, is made available to myself and all my un-vaccinated co-workers, if you believe that we will spread the virus to the vaccinated. If my request is not granted, I will have no option but to either be stood down or Power & Water dismiss me. Either way it is only fair, that I will be taking this to the Fair Work Commission.
I would like to have ask if I can have a response to my letter before the 12th November, before I am stood down or dismissed.
There are so many people in my situation and I am appealing to you to please take this opportunity to lead the people.
My sincerest thanks for your time and effort in exploring this matter,
Linda Eres
3 November 2021”
(My emphasis)
Mr David Bowen, Executive General Manager – Information, Communication & Technology, wrote to the Applicant on 11 November 2021 directing that she provide her vaccination information:
“PRIVATE AND CONFIDENTIAL
Lindy (Linda) Eres
[email address redacted]
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 Water 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 5th November 2021, your manager Skevos Macarounas advised you that you had not yet recorded your vaccination status in accordance with the CEO's direction. Your manager asked you if you intended to comply with these directions. You advised Mr Macarounas 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 12 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
David Bowen
Executive General Manager - Information, Communication & Technology”
On 12 November 2021, Ms Pullard, CEO, wrote to the Applicant directing that she not attend the workplace after 12 November 2021:
“Dear Ms Eres
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 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 11 November 2021, your Executive General Manager (EGM) wrote to you and directed you to enter your vaccination information into myHR by no later than 12 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 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 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.
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 wrote to the Applicant on 14 November 2021, raising inability or performance grounds under the PSEM Act:
“Dear Ms Eres
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 Band 1ACS in Information, Communication and Technology.
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 on 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 Officer14 November 2021”
The Applicant responded to the CEO on 22 November 2021, as follows:
“Dear Djuna
RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION & THE INABILITY OR PERFMANCE GROUNDS
In response to your letter dated the 14 November 2021, I would like to make the following submission regarding the below request by yourself;
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.In my letter to you on the 3rd November 2021, I requested an answer to quite a few concerns regarding the safety and risk assessment of the vaccines. Your advice was to contact HR. I have contacted HR, and have had no response, to any of my concerns stated in my letter to you. I also stated that according to the CHO COVID Directions (Nos5) 2021
Part 2-12 states ‘Nothing in these Directions prevents a person conducting a business or undertaking, from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7’.
I therefore am respectfully asking that you consider the option of me performing my duties working from home, as the technology is available for me to log into the Power & Water network and perform my duties, as per my job descriptions and My Plan successfully.
In my role as Records Officer, I appraise records, files, ad-hoc information, publications and paperwork for disposal. I collaborate with staff from all business units, either by phone or via email in regards to the procedures and guidelines when appraising all information. I process requests from business units, in regards to Iron Mountain requests, via the ICT Portal. I also communicate with Iron Mountain via email, phone or via the Iron Mountain Portal to complete these requests. All of these can be done working from home.
If you give me approval to work from home, my priority would be the appraisal of electronic records which we have endless amounts of, this can also be done working from home. As the technology is available for me to log into the PWC network and access everything, as if I was physically in the office. I also perform archiving reconciliation work which is part of the Iron Mountain reconciliation project - spreadsheet work, this can also be done working from home.
Part of my role is to back-up for the mail co-ordinator's role. I process all Development Applications for the Land Development team, create files and process any ad-hoc requests. All of which can be actioned working from home.
A small part of the duties of the Mail Co-ordinator's role is to deliver and pick-up physical mail to the business units. This is a small part of the role, and a number of work arounds have been put into place over the Years to mitigate these risks by;
1. All RMU staff have been trained to back up the mail duties - this is the delivery and pick-up of mail to all business units. Normally there is very little mail to be picked up or delivered on a daily basis which any of the Records Management staff can do;
2. In the past, Records Management have advised staff that have received mail to pick up or if they have mail to be sent out, to deliver mail to the records management unit, especially high priority items;
3. The other options discussed have been, to hire an external contractor to perform these duties in the absence of the Mail Co- Ordinator.
I would like you to consider the follow:
Just because we are an essential service, I do not consider myself an essential worker and in the 10 Years that I have been in Records Management, 3 Years in the position I hold now, I have never once been called in to work for emergencies and further more if I was required to I can perform the duties of my role from home.
The inability or performance grounds:
As shown above, I do have the ability to work from home and I am requesting that you consider my request.
Referring to my correspondence to you on the 3rd November 2021 and your response on the 11 November 2021, advising me to contact the HR team regarding any questions, none of my concerns were addressed either from yourself or the HR Team. If I have concerns, shouldn't these concerns be address by you as my employer? I am currently on stress leave due to the duress from yourself as my employer, and the NT Government which has resulted in me being stood down from my job. I feel this is an unnecessary directive considering my ability to perform my duties from home.
It has been and continues to be, a very stressful time for myself and my family. My husband has been stood without pay and if this happens to me when I do have the ability to work from home, we will not have an income. This action has affected my life emotionally in such a way, that I have sought counselling with Darwin Psychology Services on the 4th and 12th of November 2021. I have also consulted with my GP, who given me a medical certificate until the 19th November 2021, this will be reviewed further. I am also on Workers Compensation for an injury I sustained at work nearly 12 months ago. I am requesting, that you please advise what, and how this will affect Your decision to stand me down without remuneration.
I would like you to show compassion for all employees of Power & Water Corporation who have been stood down. Some of us have served the corporation for many years and now are being stood down with the possibility of losing our jobs. In my situation, it is highly possible that we will lose our home without our income, the home I have lived in since I was 22 years old, for 41 years and the possibility of us becoming homeless.
The intention to suspend you without remuneration
I am requesting that you consider suspending me WITH remuneration, as I do have personal which I have been using due to stress, and recreation leave accrued, and I can also perform my duties from home. I am requesting that I be allowed to utilise this leave as it is my entitlement according to my contract and the EBA. I am currently on stress leave due to you, standing me down because I am not willing to take a so, called vaccine that has no long-term safety & risk data and is still in trial until 2023. I see this as forcing me against my will by taking my livelihood away, standing me down with the threat of losing my job, when I do have other options available to me.
I would also like to request that I utilise my recreation leave during the stand down period.
You have requested that I provide my vaccination status, I would like to advice that this information is private between my doctor and myself. As mentioned in my previous correspondence to you, I am not refusing to take this vaccine, and would like to wait until further information, such as long-term safety and risk data is available on the vaccines, or wait until the Novavax vaccines is available. I have requested this, so I can make an informed decision on the safety and risk of these vaccines and whether they are a threat to my life. I do not have to disclose this information to you, or anyone else requesting this information, as you are breaching the Privacy Act.
Because I have not responded to your request to provide my vaccination status due to the privacy of my medical information, you are also breaching the discrimination act, by not allowing me to perform my job working from home, knowing that I can be performed my role by allowing me to log into the Power & Water network from home. Other employees of the corporation are allowed to work from home in different situations, such as sick children, or in lockdown situations, but you are discrimination against me and other employees that have been stood down, that can work from home by disallowing us to do so, when you are well aware that this is totally possible.
Your request for my medical vaccine status violates the following Acts;
Australian Huan Rights Commission ACT 1986
Biosecurity ACT 2015
Discrimination ACT
Privacy ACT 1988
Section 51 (xxiiiA) & 109 of the Australian ConstitutionIn addition to that you have requested that justify why I should be suspended without remuneration, if I have the ability to work from home, there is no need for me to be suspended without remuneration and furthermore, I am entitled to any leave I have accrued and am entitled to take any of this leave as per my contract and the EBA.
Furthermore, I would like to, with respect address your mention, in your reply to me on the 11 November 2021, that of one of Power & Water's Strategic Pillars 'Always Safe'. Considering yourself and the HR team were not able to address any of my concerns regarding the safety and risk assessment of these vaccines, I consider this as putting my life at risk, which contravenes Power & Water's Strategic Pillars to 'Always Safe'
I have attached my sick certificate from the 22/1 - 26/11/21.
Should my requests not be considered, I would like to put you, the NT Government and anyone else who is enforcing these rules on me, that I will be referring this matter to the Fair Work Commission, as well as seeking legal action.
I look forward to your response.
Yours sincerely,
Linda Eres
22 November 2021”
The CEO wrote to the Applicant on 24 November 2021, foreshadowing an intention to suspend her from duty:
“Dear Ms Eres
RE: INABILITY TO PERFORM DUTIES - CHO DIRECTIONS NO.55 OF 2021 AND 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 and that I was of the opinion that the grounds are of such a serious nature that you should not perform your assigned duties.
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.
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; and
· in relation to the foreshadowed intention to suspend you from your duties, including whether any suspension should be with or without remuneration.
I acknowledge receipt of your response on 22 November 2021 in which you advised that:
· you had not received a response to your letter dated 3 November 2021 regarding the safety and risk assessment of the vaccines;
· nothing in the Chief Health Officer COVID-19 Directions (No. 55) 2021 prevents a person conducting a business or undertaking, from making reasonable adjustments to accommodate a worker who is not vaccinated;
· you are respectfully asking for the option to perform your duties working from home;
· you do not consider yourself an essential worker and in the 10 Years that you have been in Records Management, 3 Years in the position you have never once been called in to work for emergencies;
· being stood down has been and continues to be, a very stressful time for you and family;
· you are on Workers Compensation for an injury you sustained at work nearly 12 months ago and how this will be affected being stood down without remuneration;
· you are seeking compassion having served Power and Water for many Years;
· request that I consider suspending you with remuneration given you are on personal leave and are also seeking to utilise recreation leave;
· you would like to wait until the Novavax vaccines is available;
· your husband has been stood down without pay and if this happens to you then you will not have an income and it is highly possible that you will lose your home; and
· you are of the view that requesting you to provide your vaccination status violates other legislation.
Finding
After considering all of the information and evidence, including your statements/response, 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.
Whilst I can appreciate your hesitancy regarding the current approved vaccinations and "the safety and risk assessment of the vaccines", as well as the potential impact on your financial situation, I refer you to the CHO Directions No. 55 of 2021. The CHO Directions No. 55 of 2021 requiring mandatory vaccination is based on the current approved vaccinations which have been approved by the Therapeutic Goods Administration.
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 1 December 2021. If no response is received within this time, I will make a final decision based on the material I currently have.
Please note, this matter remains confidential and should not be discussed in the workplace.
Suspension
You have not provided any new or relevant information, or significant reasoning, as to why I should alter my intention to suspend you with remuneration. On this basis and in accordance with section 47 of the Act, I have decided to suspend you from duty without remuneration.
Your suspension will take effect immediately on 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”
[redated]
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
24 November 2021”
The Applicant responded to the CEO on 1 December 2021, as follows:
“RE: RESPONSE TO YOUR LETTER DATED 24/11/21 - INABILITY TO PERFORM DUTIES – CHO DIRECTIONS NO. 55 OF 2021 AND DECISION TO SUSPEND
Thank you for your response to my letter dated the 22/11/21.
In response to your findings, I would like to dispute the following:
MY FINDINGS, CONCERNS & QUESTIONS
My medical information is private and confidential. Why am I being forced out of my job, because I have NOT provided this information to you, or anyone else forcing me to take these vaccinations?
I would like to ask again, why are my requests for the risk & safety data, NOT been provided by you or anyone else who is forcing me to take these vaccinations, and why are my requests for this information are being ignored?
For safety reasons, if you cannot provide the risk and safety data on these vaccines, can I ask how am I supposed to make an informed decision on whether these vaccines, will not cause harm or cause death to me?
Will you or anyone else who is forcing me to take these vaccines, considering that you or anyone else cannot provide long-term data risk and safety, and is still in trial until 2023, ACCEPT liability for my health or my death, should I take these vaccines?
Why are you or anyone else who is forcing these vaccines on to me, NOT, answering my concerns?
I have stated in my letter to you on the 3/11/21 that I am NOT refusing to take a vaccine, just not these vaccines mentioned. I have requested time to consider the vaccine in development called Novarax. Why are you using this against me, because I am refusing to take the Pfizer, AstraZeneca and Moderna?
In my job, I DO NOT have contact with any vulnerable people, so why is this being used against me. I would like to point out, as you and anyone else forcing me to take these vaccines on me, are well aware of, the vaccinated and unvaccinated are able to spread the virus. Can you or anyone else who is forcing these vaccines on me, tell why I am being locked out of work, when the vaccinated are able to spread the virus as well? Why is the CHO's directives only applied to the unvaccinated, aren't the vaccinated just as much of a threat to Power and Water as an essential service.
In the future, if the vaccinated become infected and spread the virus throughout the Power and Water work place, will the vaccinated be allowed to work from home, when they are infected by the virus? Isn't it your responsibility as you have indicated in your correspondence with me regarding the Strategic Pillars of 'Safety First' to ensure the safety of your employees? How are you going to deal with this issue when and if it happens?
Considering all of Power & Water employees that are currently able to, and still do for reasons other than the pandemic, eg. Sick children, able to work from home, because the technology is available to everyone. Can you please answer this question, is this technology no longer used or available to vaccinated employees? We are all aware that the technology is available, as employees are currently able to work from home and have done through the Pandemic and lockdowns. Why is this option not available to me or anyone else who is NOT vaccinated, but available to the rest of the Power and Water workforce? Why am being discriminated against, and this option removed because I am NOT vaccinated?
· Why are the measures in the office implemented by Yourself and the Work Health and Safety groups such as;
· Ensuring desks are 1.5 meters apart for social distancing
· Wearing of masks
· Staying away from work if sick, until I have recovered
Why are these measures NO longer available to the unvaccinated employees at Power & Water? All of these measures have worked until now, why is it NOT suitable for the unvaccinated employees @12/11/21? Why was this ok until the 12/11/21 when unvaccinated employees of Power and Water were stood down when it has been working. Have you got proof of incidents where it has NOT worked? Why are you using this as an excuse to terminate me or anyone else who works for Power and Water who is unvaccinated? Why have we been locked out of all Power and Water sites to stop us from attending the workplace?
Why am I asked now to be an emergency worker when in the time I have worked with Records Management, which is 11-12 Years, I have NEVER been asked to attend work in emergency situations? Why is this excuse being used now after 11-12 Years?
SUMMARY
Because you have not received the first dose of an approved COVID-19 vaccine, Direction 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
In my response to you on the 3/11/21, I raised serious concerns about the safety and risks of the COVID19 vaccines namely Pfizer, AstraZeneca and Moderna, posing potentially serious risks to my health. I requested the long-term safety and risk data for these vaccinations, you or anyone else who is forcing me to take these vaccinations. There is surmounting evidence of adverse reactions and deaths due to these vaccinations, not only in Darwin but around the world. There is a Facebook page called Darwin COVID19 V Adverse reactions. I would like to ask with respect, that you have a look at this page to understand why I have concerns. Again, you or anyone else forcing me to take these vaccines, have NOT addressed my concerns on the long-term safety and risk data on the vaccines, so how am I supposed to make an informed decision on whether these vaccinations are safe, and whether there is risk of adverse reactions or even death. Will you and anyone who else who is forcing this vaccine on me, be willing to accept liability for any injury or death caused by the vaccine? I would like to get a response to this question. I informed you, that I would prefer to wait and for the vaccine in development called Novarax, in my letter to you on the 3/11/21, and if I consider it safe for my health, I will be willing to be vaccinated as per the CHO Directions No. 55. I would like to bring it to your attention that I have NOT refused the vaccination, instead informing you that I would prefer to wait for the development of the vaccines Novarax in my letter to you on the 3/11/21.
Please advise whether you have considered my request.
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.
In my response to you, I advised that there is the technology that would allow me to work from home, as I am able to log into the Power & Water network from home. In addition, I advised that my job can be performed from home and there are large amounts of work, that can be done by logging into the Power and Water network from home. I have provided you with the work arounds in relation to backing up for the Mail Co-Ordinators job when he is away. At the moment, since you have stood me down, the Mail Co- Ordinator has been away sick, and these measures implemented, which shows that the work-around does work. You have NOT provided me with a valid reason, as to why I cannot work from home, when this option has been and still is available to employees of the Power & Water Corporation, EXCEPT, the unvaccinated.
Further-more in my job I would like to point out the following:
· I am NOT likely to come into contact with a vulnerable person;
· I am NOT likely to come into contact with a person or thing that poses a risk of infection with COVID-19;
· I am not likely to be exposed to a high risk of infection with Covid-19"
I would like a response from you, on why if vaccinated and unvaccinated people, are able to spread COVID19, why am I being discriminated against and options to work from home taken away from me. Can you justify why vaccinated people are allowed in the workplace when they can, just like the unvaccinated, spread the virus amongst each other?
Over my career that spans roughly 47 Years, when ill, it has always been normal practice to take sick leave, not returning to work until I have recovered. I would like to also ask, why, during the pandemic and during lock-downs the following measures were put into place to keep all Power & Water staff safe, and why these measures are no longer apply for me as a un-vaccinated employee. The Records Management Office is a secure room, my question is why did the Work Health & Safety team, inspect our work place, and took the below measures and advised us to adhere to the below, to ensure that vaccinated and un-vaccinated workers were able to work together.
· Ensuring that if we are sick, that we Do NOT attend work until we have recovered from illness;
· Ensuring our desks are set up so every employer is 1.5 meters away from each other;
· The wearing of masks;
I would like to ask why these measures no longer apply to me being able to continue as a Power & Water employee, and keep my job, when up until now these measures have worked and I have been able to attend work without a problem? As an extra safety & risk measure, why isn't there options around possible regular rapid antigen testing (saliva not nasal), as this could be an extra measure put into place to ensure the safety for all staff.
In the time I have been employed in Records Management, I have never been called in as an emergency/essential worker. There is also NO mention in my duty statement that I am required at work in emergency situations. Can you please justify why I have never been called into work during emergency situations, and there has been emergencies for cyclones, and lock-downs, and why you are using this excuse to terminate me from my job?
I would like to inform you that I have 3 grandchildren who live in Darwin. One who is severely handicapped and a special needs child. In emergency situations, I am always called upon to help take care of him and my other 2 grandchildren. I have always made myself available to my children on all occasions, caring for my grandchildren when they have been ill. This has never been an issue, as I have never been called on to attend work in emergencies, but it would be an issue if I was called in during emergencies, such as cyclones or lockdowns.
I would like to point out to you or anyone else who is forcing this vaccine on to me, that I do not give consent without the information I have requested, to make an informed decision on why this vaccination is safe and without risk, or give you consent to request my private medical information.
I would also like to once again, point out that you are in breach of the following Acts:
Australian Human Rights Commission ACT 1986
Biosecurity ACT 2015
Discrimination ACT
Privacy ACT 1988
Section 51 (xxiiiA) & 109 of the Australian ConstitutionWith respect you or anyone else enforcing this on me, have not provided me with any new or relevant information that I have requested, and will be held accountable and liable should I be terminated from my job.
Yours sincerely,
Linda Eres
1 December 2021”
The CEO dismissed the Applicant by way of formal letter dated 6 December 2021:
“Dear Ms Eres
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.
I have carefully considered all the evidence available to me, including your response received 1 December 2021. and your submissions. I provide responses to your summarised submissions as follows:
1. You state your medical information is private and confidential and are of the view you are being forced out of my job
I note your view on this and refer you to the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" Directions 14 (CHO Directions) which states 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 to which the worker is vaccinated with an approved COVID-19 vaccine".
2. Safety data has not been provided to you on the vaccines and cannot make an informed decision on whether these vaccines, will not cause harm or cause death to me.
As I advised in my correspondence on 24 November 2021, whilst I can appreciate your hesitancy regarding the current approved vaccinations and the safety and risk assessment of the vaccines, I refer you to the CHO Directions. The CHO Directions are based on the current approved vaccinations which have been approved by the Therapeutic Goods Administration.
3. You ask whether I or anyone else will accept liability for health or death should you take the vaccines.
Whilst I can appreciate your concern, as I have previously advised exemptions to the CHO Directions mandating vaccination is available to people with a medical contraindication to all available COVID-19 vaccines. Those who believe they have a medical reason for not receiving vaccination must apply for a medical vaccination exemption through their medical practitioner, such as a General Practitioner (GP).
You have not provided any medical advice, such as from a GP indicating an exemption from vaccination due a contraindication.
4. You state you are not refusing to take a vaccine, just not these vaccines mentioned (Pfizer, AstraZeneca and Moderna) and have requested time to consider the vaccine in development called Novavax.
I have noted these options and I refer you to my response to point 3 above.
5. You do not have contact with any vulnerable people.
As referred to in my correspondence of 24 November 2021, 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.
The CHO Directions' definition of "vulnerable person" specifically includes Aboriginal people and to which all Power and Water employees are likely to come into contact with. Notwithstanding whether you come into contact with vulnerable people or not, the CHO Directions apply as referred to above.
6. You ask why you are being locked out of work when the vaccinated are able to spread the virus as well.
I note your view and refer you to the CHO Directions requiring mandatory vaccination.
7. You ask why you can't work from home when the technology exists to do so and believe you are being discriminated against.
I have noted these options and I refer you to my response to point 5 above.
8. You ask why you are deemed on emergency worker when you have never been asked to attend work in emergency situations.
I have noted these options and I refer you to my response to point 5 above.
9. You do not give consent without the information you have requested, to make an informed decision on why this vaccination is safe and without risk, or give you consent to request your private medical information.
I have noted these options and I refer you to my response to point 1 above.
10. You are of the view that I am in breach of other legislation and including Australia’s Constitution.
I note your view on this and advise that the CHO Directions are law which is required to be followed by all people to which the CHO Directions apply. Furthermore, this process has been managed in accordance with direction from the Commissioner for Public Employment as the statutory employer of Power and Water employees and advice from the Solicitor for the Northern Territory.
11. You state that you will hold me accountable and liable should you be terminated from your job.
I note this statement.
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)(iii) and 27.1(b) 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 799675. 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.
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 Karen Andrews, Customer, Strategy and
Regulation/Information, Communications and Technology People and Culture Business partner on [redacted].Yours sincerely
Djuna Pollard
Chief Executive Officer6 December 2021”
The matter was originally listed for Hearing by Video via Microsoft Teams on 9 June 2022. During the proceeding, an issue arose regarding the Applicant’s representative and the matter was adjourned.
Further adjournment requests followed from the parties. The matter was conducted by video link on 21 September 2022.
The Applicant gave evidence on her own behalf. The following persons also gave evidence for the Applicant:
· Mr Michael Rowe, former Records and Information Manager for PWC; and
· Mr Jose Casimiro, friend of the Applicant.
It is noted that Mr Casimiro was not called to give evidence at the Hearing. Mr Casimiro provided a witness statement which was accepted and marked as exhibit in the proceeding.
Ms Djuna Pollard, CEO of PWC, gave evidence 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
28. Irrefutable evidence that an employer does not have a duty of care under the Work Health & Safety (National Uniform Legislation) Act 2011, to ensure that staff are not subjected to dangerous or unsafe conditions with the potential for serious injury, harm or death.
29. Irrefutable evidence that an employer is not subject to Strict Liability under the Work Health & Safety (National Uniform Legislation) Act 2011 in the case of worker injury, harm or death that may result from wearing a mask in unsuitable environments or situations, or from a vaccination as a requirement of employment. And that strict liability carries severe penalties and terms of imprisonment.
30. Irrefutable evidence that Section 109 of the Constitution allows for an act of a state or territory to override a Federal Act – rather than 'when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’.
31. The results of your due diligence in interpreting prior to issuing directions to staff, as to whether the CHO directions being issued and/or acted on are not ultra vires i.e. that the powers the CHO is asserting are those the Parliament intended to provide, if the Public Health and Environment Act 2011 has specifically provided those powers, and if those powers are consistent with the concept at law of Principle of Legality, i.e. the principle of statutory interpretation that requires clear and unambiguous statutory language to be able to depart from the general system of law and interfere with fundamental common law rights or principles.
32. Irrefutable evidence that the Australian Health Practitioner Regulation Agency (AHRPA) has not denied doctors the ability to give their patients the required information for their patients to make informed consent, by threatening them with de-registration if they “contradict or counter public health campaigns or messaging”. That they have NOT stated: Any promotion of anti-vaccination statements or health advice which contradicts…. or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards and may be in breach of the codes of conduct and subject to investigation and possible regulatory action 10.
33. Irrefutable evidence that the Therapeutic Goods Association (TGA) has NOT taken away doctor’s ability to discuss or prescribe proven prophylactics such as Ivermectin, when it has been shown in a study published in the American Journal of Therapeutics entitled Review of the Emerging Evidence Demonstrating the Efficacy of Ivermectin in the Prophylaxis and Treatment of COVID-19, that:
…based on the totality of the trials and epidemiologic evidence presented in this review along with the preliminary findings of the Unitaid/WHO meta-analysis of treatment RCTs and the guideline recommendation from the international BIRD conference, ivermectin should be globally and systematically deployed in the prevention and treatment of COVID-19.
34. Irrefutable evidence that the Power and Water Corporation does not, and never has had the technology available, for me or any other employee to perform their duties “working at a place where the worker, during the course of work (a) is not likely to come into contact with a vulnerable person; and (b) is not likely to come into contact with a person or thing that poses a risk of infection with COVID-19; and (c) is not likely to be exposed to a high risk of infection with COVID-19” as per Section 11 of the CHO 55 Directions, either at home or within the Power and Water Corporation Infrastructure.
35. Irrefutable evidence that Power and Water Corporation could not make “reasonable adjustments to accommodate” an unvaccinated worker (or similarly one who was not willing to divulge their vaccination status which is sensitive medical information protected under the Privacy Act 1988) as per Section 12 of the CHO 55 Directions.
36. Irrefutable evidence that Power Water Corporation and Northern Territory Government have NOT had a history of utilising technology for employees to be able to work from home for personal reasons, e.g. sick children.
37. Irrefutable evidence that Power Water Corporation and Northern Territory Government did NOT, during previous COVID-19 lockdowns, allow for employees to work from home.
38. Irrefutable evidence that Power Water Corporation and Northern Territory Government do NOT currently employ a roster system, allowing 50% of the workforce to work from home due to COVID-19 restrictions.
39. Irrefutable evidence as to why, despite my and my manager’s working out duties that I could perform from home, that this option was not made available to me, and why I was discriminated against due to my refusal to be coerced into divulging my vaccination status, which was ultimately used to terminate my employment.
40. Irrefutable evidence that up until the date was set by the NT Chief Health Officer for vaccination to be mandated, that both vaccinated and unvaccinated employees worked together during this time, and throughout the lockdowns.
35. Irrefutable evidence that Power Water Corporation engaged the Work Health and Safety Unit at the start of the pandemic to ensure measures were implemented for the safety of all employees.
36. Irrefutable evidence that there are ONLY vaccinated employees / contractors working for Power Water Corporation as today.”
The Applicant submitted that she was at all times able and suited to perform her duties for the Respondent from home, or another reasonably available workplace.
Effect of Termination and Remedy Sought
The Applicant submitted that she was employed by PWC for approximately 11 years prior to her dismissal on 6 December 2021.
At the time of filing her submissions, the Applicant noted that she was 61 years old and had never been terminated from a job prior to her dismissal by the Respondent.
The Applicant submitted that both her and her husband had been terminated from their employment with the Northern Territory Government, which had caused emotional pain and financial hardship for their family. The Applicant submitted that as a result of losing their jobs, they were facing losing their home.
The Applicant submitted that she was not seeking reinstatement to her role with the Respondent as she no longer felt valued or appreciated by the Northern Territory Government, despite her 33 years of service. The Applicant seeks compensation.
The Applicant submitted that she had tried to seek alternative employment, however, due to her unvaccinated status, she had been unable to secure any employment at the time of filing her submissions in this matter.
Respondent’s Submissions
The Respondent submitted that in her role as Records Officer, the Applicant provided timely, accurate and quality records management and delivery of mail service to the PWC.
The Respondent submitted that following due process, the Applicant’s employment was terminated under the PSEM Act on 6 December 2021 on the basis that she was not able to perform the inherent requirements of her job.
The Respondent relied on the chronology of events and correspondence as outlined at paragraphs [4]-[19] of this decision.
The Respondent submitted that the requirements of s.387 of the FW Act were met, as follows.
Valid Reason
The Respondent submitted that as set out in the letter of 6 December 2021, the CEO had a valid reason for the Applicant’s dismissal that was related to the Applicant’s capacity to perform her duties in that there were inability and performance grounds under sections 44(1)(a) and 44(1)(b) of the PSEM Act. Section 44(1) of the PSEM Act is relevantly extracted at paragraph [26] of this decision.
The Respondent submitted that the CEO made these findings because the Applicant had failed to comply with directions to record her vaccination status for a COVID-19 vaccination or an appropriate medical certificate indicating that she had a contraindication to all approved COVID-19 vaccines. The Respondent submitted that the Applicant’s failure to provide this information meant that the CEO was not permitted to allow the Applicant to attend the workplace to perform her duties.
The Respondent submitted that there were two reasons for the CEO issuing these directions:
“a. the requirement to comply with a lawful direction from the Chief Health Officer of the Northern Territory, which obliged her as a person conducting a business or undertaking to 'ensure that any worker who performs work for the person's workplace' not attend the workplace, if they had not received their first dose of an approved COVID-19 vaccine on and from 13 November 2021; and if they had not received their second dose of an approved COVID-19 vaccine on and from 25 December 2021; and
b. the inability of the CEO to assign the Applicant to an alternative workplace (such as working from home) that would not be subject to the Chief Health Officer’s directions.”
The Respondent submitted that although the Applicant might disagree with point (b) above, the responsibility and the prerogative of determining whom in PWC would need to record their vaccination status or evidence of a contraindication to all approved COVID-19 vaccines to ensure compliance with the Chief Health Officer’s directions rests with the CEO as the person conducting a business or undertaking. The Respondent submitted that, similarly, the consequences of non-compliance with those directions rest primarily with the CEO.
The Respondent relied on the correspondence of 2 November 2021, in which the CEO determined that the Chief Health Officer’s directions applied to all employees of PWC as they are a provider of essential infrastructure. The Respondent submitted that the Applicant was notified of this reason.
The Respondent relied on the correspondence of 11 November 2021, in which the EGM set out the consequences of non-compliance with the vaccination mandate:
“Exclusion from workplace
If you fail to enter and verify that information by 12 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 (the Act).”
(Original emphasis)
The Respondent submitted that the CEO wrote to the Applicant on 24 November 2021, in which she foreshadowed her intentions to terminate the Applicant’s employment. The Respondent cited the decision in Crozier v Palazzo Corporation Pty Ltd,[1] and submitted that consistent with that decision, the CEO presented the Applicant with her reasons before she made the decision to terminate her employment.
The Respondent submitted that the CEO provided the Applicant with an opportunity to respond to the reasons related to the foreshadowed remedial action, and on 1 December 2021, the Applicant provided a written submission to the CEO in response to her letter to her of 24 November 2021. The Respondent submitted that in the Applicant’s response, whilst not an exhaustive list, she stated that:
“a. her medical information is private and confidential;
b. why are her requests for risk and safety data on the vaccines not been provided;
c. she is not refusing to take a vaccine, just not the vaccines that were currently available;
d. she does not have contact with any vulnerable people;
e. why is she being locked out of work, when the vaccinated are able to spread the virus;
f. why is the option not available for her to work from home;
g. why is she being discriminated against.”
The Respondent submitted that, per the termination letter of 6 December 2021, the CEO advised that she had considered the Applicant’s submissions, in particular that she was unable to provide her with suitable alternative duties in a workplace that was not subject to the CHO Directions. The Respondent relied upon the Applicant’s job description, and it submitted that the job description is clear in providing that one of the key responsibilities of the Applicant’s role was to provide incoming and outgoing mail services to PWC, creation and maintenance of both hardcopy and electronic files. The Respondent submitted that these duties cannot be undertaken if the Applicant was working from home.
(My emphasis)
The Respondent noted that the Applicant has stated in her submission that she is able and suited to perform her duties from home or another reasonably available workplace. The Respondent submitted that it does not agree to this, as one of the Applicant’s duties was to physically deliver and pick up the mail. The Respondent submitted that whilst the Applicant advised this was a small part of her role and there were a number of potential work arounds, it is not feasible for the Applicant’s duties to be distributed to another colleague or for the Agency to hire an external contractor to perform these duties.
Further, the Respondent submitted that whilst the Applicant had advised she asked several questions that the CEO would not respond to regarding the safety and risk assessment of the vaccines, the CEO is not medically qualified to answer these questions. The Respondent noted that email correspondence from the Commissioner for Public Employment on 22 October 2021[2] did provide a link for employees to access further information at
For all of the above reasons, the Respondent submitted that there was a valid reason for the termination of the Applicant’s employment and on balance that termination was not harsh, unjust or unreasonable as provided in s.385(b) of the FW Act.
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.
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 FW 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.”
At the Hearing, the Applicant advised that she was still unvaccinated but will look at getting vaccinated after the vaccine trials have been concluded in 2023. I have taken this into account.
Mr Rowe testified, as the Applicant’s former Supervisor, that the Applicant would have been able to perform the majority of her role at home but that working from home was not a reasonable long-term proposition. Mr Rowe believed that such a scenario would only be feasible for 2 to 3 months. I have taken this into account.
I accept the signed Job Description evaluations which identify mail delivery as a core component of the Applicant’s role. I note that these documents have been signed by the Applicant. I have taken this into account.
I am satisfied that the CEO was obligated to follow CHO Direction No. 55. The Applicant did not have a contraindication. The Applicant did not comply with the vaccination requirements for an employee working at PWC. I have taken this into account.
I find that the Respondent had a valid reason to terminate the Applicant.
Section 387(b) – Notified of the reason
It is not in dispute that the Applicant was notified of the reasons for her termination, as demonstrated by the correspondence extracted at paragraphs [14]-[19] of this decision. I have taken this into account.
Section 387(c) – Opportunity to respond
The Applicant was given an opportunity to respond to the reasons for her dismissal, and she did so, including on 22 November 2021 and 1 December 2021. I have taken this into account.
Section 387(d) – Refusal of a support person
The Respondent did not arrange a meeting with the Applicant prior to her termination. As there were no physical meetings ahead of the Applicant’s termination, there was no opportunity or requirement for a support person to be present at any meeting. This is a neutral factor.
Section 387(e) – Unsatisfactory performance
There were no issues of unsatisfactory performance raised by the parties.
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent is a large employer with dedicated human resources staff. I have taken this into account.
Section 387(h) – Any other matters
Paragraph 12 of CHO Direction No. 55 allows an employer to modify an employee’s duties to allow them to work from home. It is evident that the overwhelming majority of the Applicant’s functions could have been undertaken at home, especially if the Respondent had been prepared to provide some assistance in collecting physical files or the reallocation of some tasks. Based on the backlog of work, I am in no doubt that the Applicant could have been gainfully employed, on a full-time basis, working from home – at least for a few months. However, the Respondent was not obligated to allow this flexibility, CHO Direction No. 55 simply allowed for such a flexibility to occur. I have taken this into account.
I note the comments of Hatcher VP in Rowe v Commissioner for Public Employment (Northern Territory) (Rowe),[7] where Mr Rowe, who appeared as a witness in these proceedings, was also suspended for 3 months and subsequently terminated:
“[81] As to the second matter, it might be said that, having suspended Mr Rowe without pay for a period of three months in response to his failure to comply with the CHO Directions, there was no need or purpose to dismiss him prior to the expiration of the period of suspension.
[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.
[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.
[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary..”
(My emphasis)
I have taken this into account.
Whilst the Applicant claims that she is not an ‘anti-vaxxer’, her conduct and submissions do not support this assertion. After claiming that she wanted to wait for the Novavax vaccine, which became available in February this year, the Applicant is still unvaccinated. Further, the material and submissions that have been proffered by the Applicant are strikingly similar to those which have been submitted by a significant proportion of other Applicants who have been dismissed for being unvaccinated in breach of CHO Direction No. 55. I have taken this into account.
The submission by the Applicant that the vaccination requirements are analogous to “rape and torture” is appalling and discredits the Applicant. I have taken this into account.
I am satisfied that the Applicant never had any intention of being vaccinated. I have taken this into account.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant.
In considering s.387(b)-(h) of the FW Act, I find that there are no issues which would warrant or justify a conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.
The Applicant has received her statutory entitlement to a fair go.
Following the obiter of Hatcher VP in Rowe, I am satisfied and find that the Applicant was not unfairly dismissed.
The Applicant’s application for an unfair dismissal remedy is dismissed.
COMMISSIONER
[1] (2000) 98 IR 37 at 151.
[2] Referenced at paragraph [9].
[3] (1995) 185 CLR 410.
[4] (1998) 84 IR 1.
[5] (1995) 62 IR 371.
[6] PR4471.
[7] [2022] FWC 1405.
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