Narelle Goodrem v Commissioner for Public Employment
[2023] FWCFB 186
•11 OCTOBER 2023
| [2023] FWCFB 186 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Narelle Goodrem
v
Commissioner for Public Employment
(C2023/1925)
| VICE PRESIDENT CATANZARITI | SYDNEY, 11 OCTOBER 2023 |
Appeal against decision [2023] FWC 666 of Deputy President Asbury at Brisbane on 20 March 2023 in matter number U2022/4833 – permission to appeal refused.
Background
Ms Narelle Goodrem (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision of Deputy President Asbury (as the Vice President then was) issued on 20 March 2023 (the Decision).[1] The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment at the Department of Corporate Digital Development of the Northern Territory Government (DCDD) under s.394 of the Act. Pursuant to s.12 of the Public Sector Employment and Management Act 1993 (NT), the Commissioner for Public Employment (the Respondent) was taken to be the employer of the Appellant.
In the Decision, the Deputy President found that the Respondent had a valid reason for dismissing the Appellant, being that she was in breach of a workplace COVID-19 vaccination mandate, and that the dismissal was not harsh, unjust or unreasonable. As such, the Deputy President dismissed the application.
This matter was listed for permission to appeal and the merits of the appeal. On 11 April 2023, directions were set for the filing of material by the Appellant and the matter was listed for hearing on 12 May 2023. The Appellant filed written submissions on 1 May 2023. On 8 May 2023, in response to the Respondent’s submissions on seeking permission to be represented by a lawyer at the hearing, pursuant to s.596 of the Act, the Appellant requested that the hearing be adjourned so that she could also seek out avenues for legal representation. On the same day, the Respondent confirmed with the Full Bench that it would be maintaining its application for legal representation at the appeal and indicated that it did not oppose the Appellant’s request for an adjournment so long as the requirement in the Directions to file written submissions were also deferred. The Full Bench subsequently vacated the original hearing date.
On 2 August 2023, the Appellant informed the Commission that she would be continuing the matter self-represented but was determined to maintain with her objection to the Respondent being externally represented. The appeal was subsequently relisted for hearing on 21 September 2023. On 11 August 2023, the Full Bench decided to refuse permission to be represented to the Respondent, and agreed with the Appellant’s submissions that there was no degree of complexity in the appeal that would enable it to be dealt with more efficiently should the Respondent be externally represented. The Respondent then filed written appeal submissions on 23 August 2023.
For the reasons that follow, permission to appeal is refused.
The Decision under appeal
The Appellant was employed in various roles with the Northern Territory Government for over two decades. At the time of her dismissal, she was employed within the Department of Corporate Digital Development of the Northern Territory Government (DCDD) as a Senior Manager of Information Management (IM). Pursuant to s.12 of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act), the Respondent was taken to be her employer.
From March to September 2021, the Appellant voluntarily took on the additional role of Senior Manager in the Records Centre Operations Stream without remuneration for the increased workload, responsibilities, or overtime hours. In early August 2021, the Appellant began experiencing difficulties with pain and swelling in her lower extremities, which affected her ability to walk freely. As a result, the Appellant was offered a temporary transfer into another position within the work unit which was responsible for the management and leadership of the IM Machinery of the Government Project team. The Deputy President accepted the undisputed evidence from the Appellant that the streams she managed in her various roles all performed extremely well, despite team members being directed from time to time to work remotely due to COVID lockdowns.[2]
On 13 October 2021, the Chief Health Officer of the Northern Territory issued Directions 55/2021, pursuant to s.52 of the Public and Environmental Health Act 2011 (NT) (PEH Act) that required certain categories of workers to receive the first dose of an approved COVID-19 vaccine by 13 November 2021 and the second dose by 25 December 2021 (Directions). The Directions also required that such workers provide evidence of vaccination or obtain a medical exemption in the form of a contraindication to every approved COVID-19 vaccine. Workers who did not comply with the requirements were prohibited from attending their workplaces. Moreover, any persons conducting a business or undertaking were also required to ensure that workers who failed to comply did not attend their workplaces. A failure to comply with these Directions without a valid exemption or reasonable excuse constituted an offence under s.56 of the PEH Act.
The categories of workers that the Direction would apply to were anyone likely to come into contact with a vulnerable person, any worker that is likely to come into contact with a person or thing that poses a risk of infection with COVID-19, any worker whose workplace poses a high risk of infection with COVID-19, and any worker that performs work that is necessary for the operation or maintenance of essential infrastructure or logistics in the NT. The Directions also allowed persons conducting a business or undertaking to make reasonable adjustments to accommodate a worker who is not vaccinated, such as by directing the worker to attend another workplace.
At the time, Ms Robinson was the nominal CEO of the DCDD and was thus the ‘person conducting a business or undertaking’ responsible for implementing the Directions. On the day the Directions were issued, Ms Robinson received an email from the CEO of the Department of the Chief Minister and Cabinet that informed all NT Government employees that a COVID-19 vaccination mandate would be implemented for certain workers and conveyed the details of the Directions as set out in the previous paragraph. On 16 October 2021, Ms Robinson emailed all DCDD staff advising that a digital vaccination register was being developed for NT Government agencies, and that the senior executive team at DCDD was considering how to implement the Directions.
On 22 October 2021, the Commissioner for Public Employment sent an email to all NT Government employees noting that, given the nature of the NT Public Service workforce and its customers, most if not all employees and contractors would need to be vaccinated to attend their workplace unless they had a valid exemption. The email also detailed the digital vaccination register system, which would be conducted through the ‘MyHR’ software. On the same day, Ms Robinson advised all Departmental employees via email that all staff were required to record their COVID-19 vaccination status by 5 November 2021, or on 12 November 2021 if their vaccination appointments were booked after 5 November 2021. The email also required that staff provide their manager with evidence of their COVID-19 vaccination status or a valid medical exemption. The email finally provided information on support resources and leave entitlements and encouraged employees to speak with their manager if they had further questions. On 28 October 2021, Ms Robinson sent a follow-up email that confirmed the mandatory vaccination requirements would apply to all employees at DCDD, offering the explanation that “Our department’s role is to support agencies across government and we have close engagement with staff from these agencies. We share buildings and common areas with staff from multiple agencies. Additionally, we have vulnerable employees that work in our teams and are people we meet with.”[3]
On 16 October 2021, the Appellant attended a staff briefing by Ms Craven, the Co-ordinator of Information Management at DCDD, about the implementation of the digital vaccination register and the implementation of the Directions. Ms Craven noted at this meeting she would be working alongside Ms Spiers to support staff at DCDD in meeting the vaccination requirements. On 25 October 2021, Ms Craven sent all staff an email confirming the aforementioned arrangements. The Appellant replied on 26 October 2021, asserting that she did not consent to receiving the vaccine “knowing that the long term studies into the efficacy and safety… have not yet been completed” and that she wished to “wait until such information is available.”[4] In an informal conversation with Ms Spiers the following day, Ms Spiers told the Appellant to not worry as she would most likely be able to work from home.
However, in the following week, the Appellant attended a meeting with Ms Spiers in which she was informed that she would not be able to work from home whilst the vaccine mandate was in place. The Appellant then explored the option of taking long service leave with Ms Spiers. On 12 November 2021, the Appellant attended the workplace in order to retrieve her belongings, prepare a handover, and meet with clients and stakeholders to inform them of her leave. On the same day, the Appellant wrote an email to Ms Robinson stating that she had serious health concerns about receiving an mRNA vaccine “based on [her] own personal medical history and that of [her] family.”[5]
On the following day, Ms Robinson sent the Appellant a letter noting that she had not registered any vaccination on MyHR and therefore directing her to not attend the workplace until she was able to provide such evidence. Although Ms Robinson approved the Appellant’s annual leave from 15 November 2021 to 14 March 2022, she clarified that this was only an “an interim arrangement” to “facilitate your compliance with CHO Directions No. 55 and will give you time to obtain the required vaccinations at an agreed later date and before your leave expires on 14 March 2022”.[6]
One week prior to the conclusion of her annual leave, the Appellant emailed the Respondent that she was unfit to return to work for a further 4 weeks as she was being treated for a medical condition which “relates to the COVID-vaccines”,[7] and requested that she be granted 4 weeks personal leave. Mr Hosking, the Acting CEO at the time, sent a letter in reply on the same day informing the Appellant that she was prohibited from attending the workplace and that he was unable to provide the Appellant with alternate duties that were not subject to the Directions. Mr Hosking also noted that he had reasonable grounds to suspect that inability and performance grounds, as they are described in s.44(1) of the PSEM Act, existed in relation to the Appellant’s employment. The Appellant was invited to respond to the letter by 4pm on 11 March 2022.
On 11 March 2022, the Appellant responded to the Respondent’s letter, attaching a medical certificate that indicated that she would be unfit for work from 14 March 2022 to 13 April 2022. The Appellant’s letter also explained why she believed it was inappropriate to suspend her given her current medical conditions and her past dedication and commitment to DCDD. The Appellant also gave further detailed reasons why she was opposed to receiving a COVID-19 vaccine.
On 14 March 2022, Mr Hosking confirmed his decision to suspend the Appellant from duty without remuneration from 15 March 2022, pending the making of a final decision in relation to the suspected inability and performance grounds under the PSEM Act. He noted that the medical certificate attached was not a contraindication to COVID-19 vaccines and did not provide sufficient information to support the Appellant’s request for extended leave. Mr Hosking invited the Appellant to provide further submissions in response to this correspondence by 21 March 2022, and foreshadowed that he would write to the Appellant by 23 March 2022 to communicate his intentions with regard to her employment.
On 21 March 2022, the Appellant wrote a lengthy email response to Mr Hosking which raised a number of issues, including that COVID-19 vaccines were only provisionally approved, that they were against her moral and religious beliefs, her frustration that her medical certificate was not seen as sufficient evidence for extending her personal leave, that working from home would have been a reasonable option, and that there was no consultation with the IM leadership team or staff for implementing the vaccine mandate.
On 29 March 2022, Mr Hosking replied, clarifying that the Appellant could have but did not obtain a permanent or temporary contraindication to COVID-19 vaccines or make an application to the Commonwealth for exemption. He also countered the Appellant’s contention that remote work would have been viable by explaining that this was not a sustainable long-term model. He further addressed the Appellant’s concerns about lack of consultation by providing the email chain referred to above in [6] – [11]. Finally, he advised the Appellant that as she remained unvaccinated and no suitable alternative duties could be provided, he was satisfied on reasonable grounds that there were inability and performance grounds pursuant to the PSEM Act. Given the existence of such grounds, Mr Hosking went on to consider the appropriate remedial actions as listed in s.46(1) of the PSEM Act and concluded that all options but termination would be inappropriate for the Appellant as they would not remedy her ability to attend the workplace. Mr Hosking gave the Appellant one final opportunity to respond by 31 March 2022. The Appellant replied on 31 March 2022 stating that she had nothing further to add, except to note that Mr Hosking had not referred to the Appellant’s religious and moral beliefs in his correspondence on 29 March 2022.
Upon returning to her position as CEO on 6 April 2022, Ms Robinson wrote to the Appellant informing her that she maintained the findings of Mr Hosking, and that the only reasonable and appropriate remedial action was to terminate the Applicant’s employment under s.46(1)(c) of the PSEM Act. During cross-examination at first instance, Ms Robinson also explained that the DCDD does not have any staff working entirely from home, and that “for various reasons relating to rostering and based on trials, the best option was a mix of working from home and in the workplace”.[8]
Having outlined the factual background of the matter, the Deputy President set out each party’s submissions. The Appellant sought reinstatement and compensation for her unfair dismissal. The Appellant’s submissions at first instance can be summarised as follows:
The Office of the Commissioner of Public Employment’s interpretation of the Directions and blanket application of the mandate to all Northern Territory Public Services staff was unfair, and there was a lack of consultation.
The Directions were invalid and unlawful because, amongst other reasons, they were racially discriminatory, misinterpreted the PEH Act, were inconsistent with Federal Department of Health Immunisation Guidelines, and were in breach of the Bill of Rights 1688.
The Respondent acted unreasonably in respect of a lack of consultation with the DCDD workplace and with the Appellant personally, placing conditions on the Appellant’s taking of long service leave, refusal to allow the Appellant to access 5 weeks of her accrued personal leave despite showing a medical certificate indicating she was unfit for work, and inappropriate application of the PSEM Act provisions to the Appellant’s circumstances.
The restrictions surrounding unvaccinated persons and vaccination mandates were already being relaxed by the Chief Health Officer prior to the Appellant’s dismissal.
Ms Craven heavily influenced the decision-making surrounding the Appellant’s termination due to holding a personal grudge.
The Appellant suffered serious financial loss, hardship, emotional harm and loss of a significant promotion opportunity as a result of her termination.
The Respondent’s submissions can be summarised as follows:
There was a valid reason for the Appellant’s dismissal, as she was not able to attend work as she had not obtained the required vaccination or evidence of an exemption, thus being unable to perform the inherent requirements of her role.
The circumstances meant that the CEO of DCDD had no alternative but to terminate the Appellant’s employment, since she was not vaccinated by the relevant dates specified in the Directions and was unable to be placed in alternate duties where the Directions did not apply.
The Appellant was given procedural fairness as she was notified of the reasons why her dismissal was being considered and was provided with multiple opportunities to respond.
Although the Appellant was receiving treatment for an ongoing medical issue, she did not provide any medical evidence that amounted to having a contraindication to all approved COVID-19 vaccines.
The Directions did not provide an exemption from vaccination for workers on religious grounds.
In relation to the Appellant not being allowed to access her accrued personal leave, the PSEM Act only allowed workers to access any accrued recreation or long service leave during a period of suspension without pay.
The Respondent carried out a fair and consultative process of implementing the Directions in the DCDD workplace and provided a variety of resources and support pathways for all staff.
The CEO considered that the Directions applied to the whole of DCDD because staff have close engagement with staff from other agencies, share buildings and common areas with staff from other agencies, and has vulnerable employees that work in teams and are people the Department meets with, and informed the Appellant of these reasons.
The Deputy President subsequently turned to a consideration of each of the factors under s.387 of the Act as to whether the Appellant’s dismissal was harsh, unjust or unreasonable.
At [87] of the Decision, the Deputy President first set out the relevantly applicable legal principles to the question under s.387(a) of whether there was a valid reason for the dismissal related to the person’s capacity or conduct, especially as they applied to circumstances involving COVID-19 vaccination mandates:
“Circumstances where an employer is prohibited by law from allowing an employee who is not vaccinated with an approved COVID – 19 vaccination to attend a workplace, and the employee exercises the right to decline to become vaccinated, may also constitute a valid reason for dismissal based on the capacity of the employee to lawfully perform the inherent requirements of a job. In such cases, where the employee cannot reasonably be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.” [footnotes omitted]
The Deputy President found at [92] of the Decision that the Directions issued by the CHO were valid and lawful, and acknowledged that, despite the Appellant’s submissions on this issue, the Fair Work Commission is not empowered to declare such Directions invalid on the grounds of discrimination or otherwise, nor determine whether they are unreasonable, disproportionate or unfair. Nevertheless, for the purposes of considering s.387(a), the Commission may decide whether a law, or a direction made pursuant to a law, was applicable in certain circumstances or to particular employees, or whether it was applied in a reasonable manner.
At [95] of the Decision, the Deputy President found that employees of DCDD were covered by direction 4(a) of the Directions as workers likely to come into contact with vulnerable persons during the course of their work, and as a result, the Appellant had to be prevented from entering the workplace. The Deputy President further expanded, at [96] – [97] of the Decision, that regardless of whether employees of DCDD were covered by the Directions, the decision to implement the vaccination policy was sound, defensible and well-founded as COVID-19 vaccinations reduces the overall risk of infection.
At [98] of the Decision, the Deputy President found that that implementation of the vaccination policy was not unreasonable based on a failure to consult employees. The Deputy President reasoned that, since the vaccination policy was mandated by the Directions, and where failure to implement would have rendered the CEO liable for penalties, the obligation to consult does not include the question whether the policy should be implemented. The Deputy President further accepted that there were several communications by DCDD to employees about the implementation of the policy and the provision of a variety of employee support resources in the period.
The Deputy President did not accept, at [100] of the Decision, that the refusal to grant the Appellant permission to work from home on a full-time basis negates her dismissal from being based on a valid reason. The Deputy President also did not accept the Appellant’s submissions that the COVID-19 vaccinations were experimental therapies, nor that she was compelled to receive vaccinations under duress or coercion. The Deputy President also found at [103] of the Decision that the Respondent was not obligated to discuss the efficacy of COVID-19 vaccinations with the Appellant or her views about them.
The Deputy President therefore concluded at [105] of the Decision that, in relation to whether there was a valid reason for the Appellant’s dismissal:
“In light of the Applicant’s personal decision about vaccination, and her inability to provide a valid exemption certificate, the Respondent could not lawfully allow the Applicant to attend the workplace and it was not reasonable to allow her to work from home pending the revocation of the CHO Directions, which at the time were for an unspecified period. Accordingly, the Applicant did not have the capacity to undertake the inherent requirements of her position and was not able to perform the duties she was assigned to perform, as provided in s. 44 of the PSEM Act. For these reasons, I find that there was a valid reason for the Applicant’s dismissal.”
Turning to the other factors in s.387 of the Act, the Deputy President found at [106] of the Decision that the Appellant was notified of the reason for her dismissal on two occasions per s.387(b), and at [107] of the Decision that she was given several opportunities to respond to the reason for her dismissal which she took advantage of per s.387(c). At [108] of the Decision, the Deputy President found that the Appellant did not request, nor did the Respondent refuse, a support person in discussions relating to the dismissal per s.387(d). Similarly, the Deputy President found at [109] of the Decision that since the Appellant was not dismissed for unsatisfactory performance, the factor in s.387(e) was not relevant.
Turning to the factors under ss.387(f) and (g), the Deputy President considered at [111] of the Decision that a dismissal conducted entirely by correspondence and without any meeting is “generally not desirable”, but acknowledged that at the time of her dismissal, the Appellant was not legally allowed to enter her workplace and did not otherwise request a meeting.
Finally, under other relevant matters per s.387(h), the Deputy President considered that the Appellant’s had 23 years of unblemished service within the NT Government and that she was a truthful witness. However, the Deputy President found at [114] of the Decision that she did not consider the failure by HR representatives to meet with the Appellant to discuss her dismissal rendered her dismissal unfair, and at [115] of the Decision that she did not consider that the Appellant’s dismissal was unfair because she was not permitted to take her accrued personal leave instead of being dismissed.
Having turned her mind to all of the factors in s.387 of the Act, the Deputy President found at [118] of the Decision that the Appellant’s dismissal was not harsh, unjust or unreasonable and therefore that it was not unfair, subsequently dismissing the Appellant’s application.
Grounds of appeal
The Appellant advances four grounds of appeal, as set out in her Form F7 Application and expanded on in her written submissions, which we briefly summarise below.
Ground 1 – error of law
The Appellant submits under her first ground of appeal that the Deputy President erred in law in a number of respects, being that the Deputy President:
a)Found that the Respondent could not reasonably allow the Appellant to work from home due to the Directions which were at the time “for an unspecified period”, even though two weeks prior to her dismissal, the NT Minister had announced a revocation of the Directions and the end of a state of emergency in the NT to take effect in April 2022 and June 2022, respectively. The Appellant further contends that further Directions issued by the CHO did not apply to her workplace.
b)Did not consider that the Appellant was being discriminated in her workplace, to the extent that she was not granted permission to work from home on a temporary basis, despite this request being in line with arrangements approved for her peers at the DCDD and the Office of the Commissioner for Public Employment’s flexible work arrangements policy. Moreover, the Deputy President did not consider the Appellant was still able to perform the inherent requirements of her role, whether from home or at the workplace.
c)Did not give due weight to the fact that the Appellant’s dismissal was carried out entirely by correspondence and she was not offered a face-to-face meeting or was advised that she was entitled to have a support person at such a meeting.
d)Stated that the Appellant was terminated for reasons related to capacity, even though the PSEM Act does not allow for dismissal on the grounds of capacity (or lack thereof).
e)Failed to find that the Respondent unlawfully denied the Appellant access to her leave entitlements, putting her in a default position of non-compliance with the Directions.
Ground 2 – irrelevant factors used to guide the decision
Under Ground 2, the Appellant asserts that the Deputy President was influenced in her decision by a number of irrelevant factors. These included that the Deputy President:
a)Was guided by her personal views about the Appellant’s state of health to inform her decision about whether she would have been able to return to the workplace.
b)Relied on findings from CFMMEU v Mt Arthur Coal[2021] FWCFB 6059 (“Mt Arthur Coal Case”) to conclude that the Respondent’s vaccination mandate was reasonable.
c)Failed to consider evidence filed by the Appellant relating to the safety data and adverse impacts of Pfizer COVID-19 vaccines.
Ground 3 – failure to understand certain facts
The Appellant submits under Ground 3 of the appeal that the Deputy President misunderstood or misinterpreted several factual matters at first instance. There is considerable overlap between the claims put forth by the Appellant in Ground 3 and the previous two grounds. The distinct submissions made by the Appellant under Ground 3 are that the Deputy President:
a)Failed to consider that although the Directions applied to certain categories of workers, the Respondent considered that all workers within the DCDD fell into one of those categories. However, the Appellant asserts that she did not fall into any of the categories set out in the Directions.
b)Failed to consider that, despite being unvaccinated, the Appellant nevertheless attended her workplace from time to time during the period where a State of Emergency had been declared in the NT and demonstrated exemplary work performance.
c)Failed to consider that the Appellant did successfully work from home for an extended period of time during the pandemic, and that the Respondent’s refusal to allow her to work from home permanently was unreasonable and unilateral.
d)Failed to appreciate that there were numerous positions within the NT Public Service that the Appellant could have been transferred into, and was not afforded the opportunity to return to work despite being unvaccinated (as in the cases of Mr. Michael Rowe v Northern Territory Commissioner For Public Employment (NTCPE) trading as Power And Water Corporation[2022] FWC 1405 and Ms. Chantelle O’Connor v NT Commissioner for Public Employment trading as the NT Department of Health[2022] FWC 1400).
Ground 4 – failure to consider certain evidence
Ground 4 also contains a significant amount of overlap with the Appellant’s submissions under Grounds 1 and 3. The distinct submissions made by the Appellant under Ground 4 are that the Deputy President:
a)Did not consider the evidence that was put before Commissioner Riordan in a prior hearing on the same matter before it was reallocated to and started afresh by the Deputy President, which prejudiced the Appellant in that not all relevant information was considered by the Deputy President.
b)Did not enforce the requirement for the Respondent to file certain submissions on the impact of the Directions, despite the Deputy President saying at a case management hearing that the previous directions issued by Commissioner Riordan still stood.
c)Failed to consider the fact that the Applicant did not refuse to be vaccinated, but rather sought leave to focus on her physical and emotional wellbeing and wait for the necessary safety data to become available so that she could provide informed consent.
d)Did not run the hearing in accordance with the Act insofar as she did not ask the Appellant’s Representative at first instance to seek permission to appear pursuant to s.596 of the Act.
Public interest grounds
The Appellant submits that this appeal raises issues of general application and importance, and thus attracts the public interest, because the Deputy President’s choice to not name a certain member of the Respondent’s organisation that engaged in inappropriate behaviour at the hearing before Commissioner Riordan at [7] to [16] of the Decision demonstrated bias on the part of the Deputy President. The Appellant also submits that the Deputy President made errors of law, and that the Decision manifests an injustice against her.
The remainder of the Appellant’s submissions on public interest deal with the manner in which Commissioner Riordan ran the matter prior to the Deputy President, and of events that occurred at that previous hearing. For reasons that will be discussed below, and as already addressed at the appeal hearing, we consider that these grounds are not relevant in this appeal.
Principles on appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[9] There is no right to appeal. An appeal may only be made with the permission of the Commission.
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error,[11] or a preference for a different result.[12] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[13]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[14] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Ground 1
Under Ground 1(a), the Appellant contends that the Deputy President erred in law by finding that “the Respondent could not lawfully allow the applicant to attend the workplace and it was not reasonable to allow her to work from home pending the revocation of the CHO Directions which at the time were for an unspecified period.”[15] The basis of the Appellant’s submission is that, at the time of her dismissal, NT Government announcements or press releases had been issued indicating that vaccine mandate restrictions and the state of emergency in the NT would be easing soon.
While it is true that on 24 March 2022, two weeks prior to the Appellant’s dismissal, CHO Directions 53/2022 were issued that revoked the Directions 55/2021 with effect from midnight 22 April 2022, Directions 52/2022, which were already issued on 13 March 2022, required covered workers to not enter or remain on the premises of their workplace unless they had received at least 3 doses of an approved COVID-19 vaccine. Directions 52/2022 also took effect from midnight 22 April 2022 and effectively replaced Directions 55/2021. At the time of the Appellant’s dismissal, there was no indication as to the exact date Directions 52/2022 would be lifted, only that those Directions would remain in force until the public health emergency declaration ceased. Moreover, although comments provided by NT Government officials to the media indicated that the state of emergency would be lifted in the near future, there was no firm nor official date in place at the time of the Appellant’s dismissal. We therefore disagree with the Appellant’s contention that the Deputy President erred in finding that the CHO Directions were for an unspecified period and consider that this was a finding open to her. We also disagree with the Appellant’s assertion that Directions 52/2022 did not apply to her workplace, though whether it applied is irrelevant to this appeal as Directions 55/2021 were still in force at the time of the Appellant’s dismissal.
We consider that the remainder of the Appellant’s contentions under Ground 1(a) are no more than a re-agitation of arguments the Appellant already put forth at first instance. At [90] to [95] of the Decision, the Deputy President comprehensively analysed why the Respondent could not lawfully allow the Appellant to attend the workplace. Moreover, at [100] of the Decision, the Deputy President found that a refusal by the Respondent to allow the Applicant to work exclusively from home does not result in her dismissal being for a not a valid reason. The Deputy President further accepted that the Appellant “was a team leader responsible for training staff and… the optimum way for her to work was to be in the workplace and that she could not have worked from home 100% of the time efficiently or effectively.”[16] This was a finding open to her on the evidence.
We also consider Ground 1(b) as an attempt by the Appellant to re-ventilate arguments already considered by the Deputy President at first instance. As noted above, the Deputy President did consider the Appellant’s request to work from home in great detail and found that it was not unreasonable for the Respondent to deny that request, particularly given the requirements of her role as a team leader. The Deputy President also accepted evidence that there were no staff at DCDD that worked entirely from home.[17] As such, it was open to the Deputy President to not make a finding that the Appellant was dismissed due to discrimination, and vice versa, for her to make a finding that the Respondent dismissed the Appellant pursuant to s.44 of the PSEM Act.
As for Ground 1(c), the Deputy President did consider the fact that the Appellant was dismissed entirely by correspondence at [110] and [111] of the Decision, but concluded that the circumstances at the time, including that the Appellant was not legally permitted to enter the workplace and the Respondent was not permitted to allow her to enter, rendered this factor neutral. This was a finding open to her on the evidence.
The Appellant asserts in Ground 1(d) that the Deputy President made an error of law by finding that she was terminated due to incapacity rather than unsatisfactory performance, when the PSEM Act only permits termination for inability or performance reasons. We disagree with the Appellant’s contention for two reasons. Firstly, we consider that this submission makes incorrect assumptions about the interaction between the Fair Work Act and the PSEM Act; the Appellant’s application for an unfair dismissal remedy must be assessed under the provisions of the former Act only, and in particular s.387(a). Secondly, we consider that even if the above were not true, the Appellant being barred from entering the workplace by the Directions clearly goes to her “inability” to perform the inherent requirements of her role.
Finally, under Ground 1(e), the Appellant submits that her dismissal was unfair because she was not permitted to access her personal leave entitlements after her period of long service leave and was instead placed on suspension. Once again, the Deputy President considered this in detail at first instance at [115] to [117] of the Decision, found that the CEO of DCDD validly exercised their discretion to suspend the Appellant, and concluded that even if the Appellant was permitted to take her accrued personal leave there would nevertheless have been a period between the end of that leave and the lifting of CHO Directions 52/2022 where she would have been non-compliant and unable to enter the workplace. These findings were open to the Deputy President on the evidence.
As Ground 1 discloses no arguable case of appealable error, we reject it.
Ground 2
The Appellant submits under Ground 2(a) that the Deputy President was informed by her own irrelevant opinion on the Appellant’s state of health. The Appellant takes particular issue with [43] and [44] of the Decision, in which the Deputy President asks the Appellant whether, had she been granted five weeks of accrued personal leave, she would be able to return to work at the end of that period. We disagree that this was an irrelevant consideration. The Appellant’s fitness to return to work, and how that timing aligns with the CHO Directions, are patently relevant to whether her dismissal was unfair and whether reinstatement as a remedy would have been viable, had the Appellant’s application been granted.
As for Ground 2(b), the Appellant contends that the Deputy President should not have relied on observations made in the Mt Arthur Coal case to inform her decision. We disagree. Where the factual background for any matter shares similarities with previous decisions of the Commission, it is not only permitted, but recommended, for any new decisions to be guided by observations made in past decisions. Especially as the Mt Arthur Coal case was decided by a five-Member Full Bench, the fact that the Deputy President made reference to some observations made in that decision about the risks posed by COVID-19 and applied them reasonably in her consideration of the evidence before her does not of itself disclose any appealable error.
Finally, under Ground 2(c), the Appellant argues that the Deputy President failed to consider the evidence she submitted pertaining to the risks of the Pfizer COVID-19 vaccine. While the Deputy President does not make explicit reference to this document in her Decision, it is clear that she did assess and consider the efficacy and safety of approved COVID-19 vaccines throughout the Decision, and particularly at [96] and [97].
As Ground 2 discloses no arguable case of appealable error, we reject it.
Ground 3
Ground 3(a) is no more than a disagreement in general terms with the Deputy President’s acceptance that the Respondent’s implementation of a vaccine mandate applied to all employees within DCDD and therefore the Appellant. The Directions placed an onus on the person conducting a business or undertaking, in this case the CEO of the DCDD, to identify which workers the mandate applied to, and not on individual workers to self-identify and exclude themselves from the workplace. The Deputy President therefore found at [94] and [95] of the decision that:
“The CEO of the DCDD decided, as the person conducting the business or undertaking for the purpose of the CHO Directions, to implement a mandatory vaccination requirement, on the basis that all jobs within DCDD were considered to fall within the provisions of the Directions requiring vaccination. The reason for this consideration was that the role of DCDD is to support agencies across government and staff who have close engagement with staff from other agencies, including by sharing buildings and common areas. Additionally, Ms Robinson’s uncontested evidence is that DCDD has vulnerable persons that work in its teams and employees of DCDD are required to meet with vulnerable persons.
Accordingly, employees of DCDD were covered by direction 4(a) of the CHO Direction – workers likely to come into contact with vulnerable persons during the course of their work. The approach taken by Ms Robinson as the CEO of DCDD was consistent with the approach taken across all Departments and agencies of the Northern Territory Government. As the CHO Directions applied to all employees of DCDD, Ms Robinson as the person conducting a business or undertaking could not lawfully permit the Applicant to enter the workplace.”
Under Ground 3(b), the Appellant asserts that the Deputy President did not consider the fact that, despite being unvaccinated, the Appellant did attend her workplace from time to time whilst the NT was in a state of emergency. However, we do not consider that this bears any relevance to the matter. As per the Directions, the requirement for persons conducting a business or undertaking to exclude unvaccinated workers from the workplace only applied from 13 November 2021 onwards.
The Appellant further submits under Ground 3(c) that the Deputy President failed to consider that the Appellant did successfully work from home during the NT state of emergency. We disagree. The Deputy President plainly assessed this throughout her Decision, particularly at [100] where she found that “The fact that the Applicant worked from home successfully at various times when there were lockdowns due to COVID – 19 or where the Respondent agreed to her doing so, does not make the Respondent’s requirement that she attend the workplace, unreasonable.” The Deputy President’s subsequent finding that it was reasonable for the Respondent to direct the Appellant to return to the office was open to her on the evidence.
Finally, under Ground 3(d), the Appellant contends that her termination was unreasonable as she could have been transferred into another role within the NT Public Service. In support of this submission, the Appellant draws on two recent cases before the Commission. Firstly, we consider that evidence was already led by the Respondent at first instance that there were no alternative duties or roles at DCDD that could be assigned to the Appellant that were not subject to the Directions, which the Deputy President accepted at [104] of the Decision and factored into her consideration of whether there was a valid reason for the Appellant’s dismissal. Moreover, we will not speculate on whether the Appellant would have been able to be relocated into another organisation in the NT Public Service entirely, as this was not an issue raised at first instance, though we do note that the Deputy President considered and accepted at [90] of the Decision that the Government of the NT had made a decision that most if not all NT Public Service workers and contractors needed to be vaccinated to attend its workplaces.
As for the two other cases before the Commission cited by the Appellant, we consider that they in fact support the Deputy President’s decision that the Appellant was not unfairly dismissed. The cases involving Mr Michael Rowe and Ms Chantelle O’Connor share a similar factual background to the Decision at first instance, in that they concerned employees of the NT Public Service that were dismissed due to capacity reasons that arose from non-compliance with the Directions, and it was decided in each case that the Applicants were not unfairly dismissed. The fact that those Applicants may have been offered further employment with the NT Public Service subsequent to the revocation of the Directions is irrelevant to this appeal.
As Ground 3 discloses no arguable case of appealable error, we reject it.
Ground 4
At the outset of our consideration of Ground 4, we note that Commissioner Riordan initially had carriage over the matter at first instance. However, due to the inappropriate conduct of the Respondent’s representative at a hearing before Commissioner Riordan, which was recounted at [7] to [16] of the Decision, the matter was re-allocated to the Deputy President. The Deputy President subsequently undertook a fresh hearing of the Appellant’s case. The decision that arose from that hearing before the Deputy President is the one that is the subject of this appeal, and regardless, no decision was issued in relation to the original hearing before Commissioner Riordan. That the Deputy President did not consider evidence presented in that original hearing does not disclose any appealable error since the hearing before the Deputy President was not a continuation. We therefore reject Ground 4(a).
As for Ground 4(b), we also disagree that it discloses any appealable error on the part of the Deputy President. We recognise that the Deputy President allowed all previous directions issued by Commissioner Riordan to stand when undertaking a fresh hearing of the case, and despite that, the Respondent did not file written submissions on the impact of the Directions by 4 November 2022 as originally directed. However, that issue was explored thoroughly at the hearing before the Deputy President, and oral submissions were made by the Respondent addressing this issue which were considered at [83] to [85] of the Decision.
The Appellant submits under Ground 4(c) that the Deputy President failed to consider that the Appellant never refused to be vaccinated but was only waiting for sufficient safety information about the vaccines to become available. We do not consider that the personal reasons for the Appellant to have not been vaccinated has any bearing on this appeal; the only question before the Deputy President was whether the Appellant’s dismissal was unfair. As previously discussed, the Deputy President found, as was open to her, that the Appellant could not perform the inherent requirements of her role as she was not vaccinated, thereby giving the Respondent a valid reason for her dismissal.
Finally, we consider that the Appellant is mistaken with regard to Ground 4(d). At the hearing before the Deputy President, the Appellant introduced Mr. Derek Balough as her representative. The Deputy President subsequently allowed Mr. Balough to assist the Appellant while making her submissions.[18]
As Ground 4 discloses no arguable case of appealable error, we reject it.
Conclusion
The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to her. We also do not consider that the Appellant’s submission that the Deputy President demonstrated bias has any merit. The Deputy President’s choice to not name a particular member of the Respondent’s organisation in relation to conduct in the hearing before Commissioner Riordan bears no relevance to whether she brought an impartial mind to the resolution of the Appellant’s application.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 of the Act, that it does attract the public interest. In reaching this conclusion we have had regard to the fact that:
· there is not a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal does not raise issues of importance and/or general application;
· the Decision at first instance does not manifest an injustice, nor is the result counter-intuitive; and
· the legal principles applied by the Deputy President were not disharmonious when compared with other decisions dealing with similar matters.
It follows that we must refuse permission to appeal. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
N Goodrem, Appellant.
M Hathaway, of the Respondent.
Hearing details:
2023.
Sydney, with video link to Parties using Microsoft Teams.
21 September.
[1] [2023] FWC 666 (‘Decision’).
[2] Decision at [38] – [42].
[3] Decision at [33].
[4] Decision at [47].
[5] Decision at [51].
[6] Decision at [52].
[7] Decision at [53].
[8] Decision at [65].
[9] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[10] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[12] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[13] (2010) 197 IR 266 at [27].
[14] Wan v AIRC (2001) 116 FCR 481 at [30].
[15] Decision at [105].
[16] Decision at [100].
[17] Decision at [64].
[18] Transcript at PN4-12.
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