Narelle Goodrem v Commissioner for Public Employment
[2023] FWC 666
•20 MARCH 2023
| [2023] FWC 666 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Narelle Goodrem
v
Commissioner for Public Employment
(U2022/4833)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 20 MARCH 2023 |
Application for an unfair dismissal remedy – Applicant dismissed for failure to comply with the Northern Territory Chief Health Officer Directions – Dismissal not unfair – Application dismissed.
Overview
Ms Narelle Goodrem (the Applicant) applies to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the FW Act) in respect of the termination of her employment with the Department of Corporate Digital Development of the Northern Territory Government (DCDD). The Applicant was employed as a Senior Manager – Information Management prior to her dismissal which took effect on 6 April 2022. The application was made on 27 April 2022. In the Form F2 application, the Applicant initially named as the Respondent the “Northern Territory Government” and was subsequently advised by the Commission that the legal name of the Respondent identified in the Form F3 Response was the “Commissioner for Public Employment”. On 24 June 2022, the Applicant made a request to the Commission seeking that the name of the Respondent be amended.
Section 12 of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) provides that the Commissioner for Public Employment is taken to be the employer of all persons employed in the Public Sector, other than the Commissioner or a Chief Executive Officer, on behalf of the Territory or an Agency.[1] Accordingly, the Commissioner for Public Employment was the Applicant’s employer, no objection was taken to the application being amended and permission was granted to the Applicant to amend her application.
The circumstances of the Applicant’s dismissal can be summarised as follows. On 13 October 2021, the Chief Health Officer (CHO) of the Northern Territory issued Directions (the CHO Directions) pursuant to s. 52 of the Public and Environmental HealthAct 2011 (NT) (PEH Act) in response to the COVID – 19 pandemic. The Directions required certain categories of workers to receive the first dose of an approved COVID – 19 vaccine by 13 November 2021, the second dose by 25 December 2021 and to provide evidence of vaccination, or to obtain an exemption from the requirements of the Directions on the basis of a contraindication to every approved COVID – 19 vaccines. Workers who did not comply with the requirements were prohibited by the Directions from attending their workplaces. Any person conducting a business or undertaking was also required to ensure that workers who failed to comply with the Directions did not attend their workplaces. A failure to comply with the Directions without a valid exemption or reasonable excuse constituted an offence under s. 56 of Public and Environmental Health Act 2011 (NT) (PEH Act).
The Respondent considered that all jobs within the DCDD fell within one or more of the categories specified by the CHO as requiring workers to be vaccinated and implemented a vaccination policy to comply with the CHO Directions. The Applicant did not comply with the
CHO Directions and was prohibited from attending her workplace from 13 November 2021. On 13 November 2021, the Applicant commenced a period of long service leave and was directed not to attend her workplace until such time as she was able to provide evidence of her vaccination status in compliance with the Directions. At the conclusion of her long service leave on 14 March 2022, the Applicant remained non-compliant. As a result of her non-compliance and exclusion from the workplace, the Applicant was found by the CEO to be unable and/or unsuitable to perform the inherent requirements of her role within the meaning of ss. 44(1)(a) and 44(1)(b) of the PSEM Act. On 6 April 2022, the Applicant was dismissed from her employment in accordance with s. 46(1)(c) of the PSEM Act.
In her Form F2 Application (subsequently taken to be her submissions), the Applicant contends that her dismissal was unfair on various grounds including: lack of consultation and/or change management sessions being conducted by DCDD in relation to risk assessment or the impact of the CHO directive on their workplace; failure of human resource management staff (HR staff) to conduct a meeting with the Applicant to discuss her difficulties with the CHO Direction based on: personal and family health issues; concerns about taking “experimental pharmaceutical product”; inability to sign paperwork consenting to vaccination because of the threat of losing her job; and religious beliefs preventing her from “accepting products made from the DNA of another human being (aborted foetus cell lines)”.
The Applicant also contends that her Director at that time informed her that she would not need to meet with HR staff because she would more than likely be able to continue to work from home and that no proper consideration was given to whether this was the case. Further, the Applicant said that she had worked from home successfully during lockdowns in 2020 and 2021 during which time she had been responsible for ensuring that 18 staff members in separate agencies were enabled to work from home, established 2 new work streams to work from home, trained other staff, and moved into a third role when requested taking on major projects for another unit within the department and undertook her own work. The Applicant’s annual performance review undertaken in November 2021 acknowledged and praised her outstanding performance while working from home. Further, the Applicant said that the CHO Direction did not apply in her workplace, was racially discriminatory by classifying indigenous peoples as vulnerable, misinterpreted the PEH Act and was inconsistent with the Federal Department of Health Immunisation Guidelines.
Inappropriate conduct of Respondent’s representative
It is necessary to recount some of the procedural history of this matter. The application was originally allocated to another Member of the Commission for hearing. A hearing was commenced before that Member via video conference on 4 November 2022. At the hearing evidence was given for the Respondent by the Acting Chief Executive Officer (CEO) of the Department of the Chief Minister and Cabinet, and the nominal CEO of the Department of Corporate and Digital Development of the Northern Territory Government, Ms Robinson. The Respondent was represented by two persons at that hearing.
After the conclusion of a full day of hearing, the Commissioner for Public Employment Northern Territory Government, Ms Vicki Telfer, sent an email to the Chambers of the Member who conducted the first hearing advising “of the unfortunate sending of text messages” by the Commissioner’s representative, to Ms Robinson, while Ms Robinson was being cross-examined by the Applicant. The email advised that this matter had come to light in a discussion with the other person representing the Respondent, after the conclusion of the hearing on 4 November 2022. The email further stated that Ms Robinson confirmed she had received those text messages at the hearing but was “unable to read them and respond to the questions Ms Goodrem was asking at the same time”. It was also stated that Ms Telfer was satisfied that the representative “is a novice to Fair Work Commissioner hearings” and sent the text messages “with a genuine belief that she was not doing anything unethical”. Screenshots of the text messages were attached to the email. Essentially the texts messages were prompts to Ms Robinson in relation to substantive matters reminding her to make certain points.
It is notable that at the time the conduct occurred, Ms Robinson was under either oath or affirmation. It is astonishing that any person with the smallest understanding of the proceedings could have thought it was appropriate to send Ms Robinson text messages to prompt her in relation to her evidence and would not have understood that this was unethical conduct.
The description of the text messages as “unfortunate” is an understatement. Both the conduct and its attempted justification are reprehensible. The email signature block on documents sent to the Commission by the person who engaged in the conduct, indicates the person is the holder of the position of Principal Consultant of the Office of the Commissioner for Public Employment of the Northern Territory Government. The same person signed the Form F3 Employer response to the application. Further, a person with the same name is listed on websites as being admitted as a legal practitioner in the Northern Territory and as previously holding senior positions with various organisations engaged in employment and industrial relations.
The conduct would be extremely concerning if the person who engaged in it was a novice in relation to Fair Work Commission hearings. It is alarming that person who holds such a senior position would engage in such conduct, particularly if the person is admitted as a legal practitioner. The conduct would not be appropriate in a hearing before any court or Tribunal and I do not accept that a person who holds the senior role of Principal Consultant to the Commissioner for Public Employment of the Government of the Northern Territory, would not understand this. The conduct and the attitude to it would be even more alarming if the person who engaged in it is the same person who appears on various websites which state that a person with the same name is admitted as a legal practitioner.
It has been necessary in recent times for the Commission to conduct its proceedings by means other than in person hearing. This practice continues to be cost-effective, convenient and efficient, and ensures that the Commission can better deliver services to users and stakeholders. However, the Commission depends on the integrity of parties and their representatives. As a result of the conduct of this representative, it was necessary to rehear the matter. I decided that this was necessary, so that I could see and hear the witnesses giving their evidence, rather than simply reading the transcript of the earlier proceedings. Further, the Respondent did not provide an affidavit from the witness, Ms Robinson, confirming the advice in the email, that she had not read the text messages when she gave her evidence. I am also of the view that the advice from the Respondent about the incident understated the significance of what occurred, and accordingly I did not think it appropriate to simply continue the hearing from the point where the conduct was advised to the Commission. I was also of the view that in fairness to the Applicant, I should hear and see her give evidence via video.
The Applicant has suffered significant distress at the disruption to the presentation of her case, being required to give her evidence twice and being subjected to cross-examination twice. The Applicant has also suffered delay in the outcome of these proceedings, through no fault of her own and because of the conduct of the Respondent’s representative. Had the Applicant been represented by a lawyer or paid agent, she would have a strong argument for costs including on an indemnity basis. Further, the time and resources of the Commission have been wasted to the extent that a full day of hearing by a Member of the Commission has been thrown away in circumstances where those resources could have been diverted to other matters.
Notwithstanding my views about the conduct and the attempted justification, I accept that on becoming aware of the conduct, the Respondent acted appropriately by informing the Commission about what had occurred. It is also the case that the conduct has no bearing on the events relating to the Applicant’s dismissal and whether the dismissal was unfair.
I conducted a hearing of the application on 12 December 2022, by Microsoft Teams. At the hearing, the Applicant was self-represented with Mr Balogh attending as her support person. The Applicant gave evidence on her own behalf. The Respondent was represented by Ms Helena Glew. Evidence for the Respondent was given by Ms Robinson.
Section 396 requires that I decide four maters before considering the merits of the application. Firstly, I am satisfied that the application was made within the time required. Ms Goodrem’ application was made within the 21-day period required by s. 394(2) of the Act. Secondly, the Applicant was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy within the meaning in s. 389. Fourthly, the Respondent is not a small business.
Evidence
Public Health Directions
On 13 October 2021, in response to the COVID – 19 Pandemic and the public health emergency declared on 18 March 2020, the Chief Health Officer of the Northern Territory, issued the COVID – 19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace under s. 52 of the PEM Act. The Directions were amended in November 2021 by COVID – 19 Directions (No 81) 2021, in a way that is not material to the present application. The COVID – 19 Directions remained in force in the Northern Territory until 15 June 2022 and applied, by virtue of direction 4, to workers falling within one of the following categories:
“4. These Directions apply to the following workers:
(a) a worker who, during the course of work, is likely to come into contact with a vulnerable person;
(b) a worker who is at risk of infection with COVI D-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
(c) a worker whose workplace poses a high risk of infection with COVID-19;
(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.”
Direction 3 stated that a person “is considered to be vulnerable to infection with COVID – 19” if the person is under 12 years of age; cannot be vaccinated due to a contradiction to all approved COVID – 19 vaccine; is an Aboriginal person; or is at risk of developing severe illness from COVID – 19 for medical reasons, such as those with certain chronic diseases or those receiving immune suppressive therapy after an organ transplant.
In determining whether the CHO Directions applied to a worker as set out in direction 4, direction 5 stated that regard was to be had to the provisions of the Schedule. The Schedule set out further definitions regarding the meaning and scope of each category of workers under direction 4(a), as follows:
“1. For direction 4(a), workers who, during the course of work, are likely to come into contact with a vulnerable person include the following:
(a) workers who work with children, such as teachers, child care workers, tutors, gym coaches and swimming instructors;
(b) workers who work with disabled persons, elderly persons or other persons vulnerable to infection with COVID-19, such as legal service providers, disability care workers and personal carers;
(c) workers who directly face customers or patients in health care and ancillary health care services;
(d) workers who work in a community consisting of mostly Aboriginal people;
(e) workers who provide community services;
(f) workers who directly face customers in retail services, financial or hospitality industries and other service industries.
As to the vaccination requirements direction 6 provided 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”. Direction 7 provided that “[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.” In relation to the basis for an exemption from the requirements of the Directions, direction 8 provided that notwithstanding “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.” Under direction 9, the evidence of a contraindication was required to be in the form of:
(a)a medical certificate issued by a medical practitioner that certifies that the worker has a contraindication to all approved COVID-19 vaccines determined in accordance with the Clinical guidance on use of COVID-19 vaccine in Australia in 2021, or any successor guidelines, issued by the Australian Technical Advisory Group on Immunisation (ATAGI);
(b)a certificate issued by the Commonwealth that certifies that the worker has a contraindication to all approved COVI D-19 vaccines.”
Under direction 10, 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.” However, by virtue of direction 11, an unvaccinated worker without an exemption was not prevented 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.
Direction 12 further provided that a person conducting a business or undertaking was not prevented from “making reasonable adjustment to accommodate a worker who is not vaccinated”. The example accompanying direction 12 provided that reasonable adjustment may include “directing the worker to attend another workplace where the worker is not likely to come into contact with a vulnerable person or be exposed to a high risk of infection.”
In addition, directions 13 – 15 provided that a person conducting a business or undertaking could request evidence of vaccination from a worker and must keep a register to record the extent to which each worker who performed work for the person was vaccinated as well as information about the reasonable steps taken by the person to determine the extent to which their workers were vaccinated.
The Notes accompanying the Directions stipulated that a failure to comply with a direction, without a reasonable excuse, was an offence under s. 56 of Public and Environmental Health Act 2011 (NT) and carries a maximum penalty of 400 penalty units. An infringement notice may also be issued for failing to comply with these directions which carries a fine equal to 32 penalty units for an individual and 760 penalty units for a body corporate.
On 13 March 2022, COVID-19 Directions (No. 52) 2022: Directions for additional vaccination requirements for certain workers to attend the workplace, which took effect at 12.01 am on 22 April 2022, was issued. Essentially those Directions required that a worker covered by the Directions must not enter or remain on the premises of the worker’s workplace unless the worker had received at least 3 doses of an approved COVID – 19 vaccine or is otherwise exempt. On 15 June 2022, the CHO issued Post-emergency COVID-19 Directions (No. 1) 2022 revoking previous Directions, following the cessation of the declaration of a public health emergency in relation to COVID – 19.
Implementation of vaccination policy by CEO of DCDD
Ms Robinson was the Acting CEO of the Department of the Chief Minister and Cabinet and the nominal CEO of DCDD at the time of the Applicant’s termination on 6 April 2022. Ms Robinson held the position of CEO of DCDD from December 2012. The functions and powers of the CEO are set out in ss. 24 – 25 of the PSEM Act, including directing employees, ensuring ministerial objectives are attained, assigning duties to be performed by each employee, ensuring appropriate occupational health and safety standards and programs are in place. As the CEO, Ms Robinson said that she was also empowered to make decisions in relation to the performance and inability provisions under Part 7 of the PSEM Act, including to terminate the employment of an employee.
Ms Robinson said that the DCDD manages the NT Government’s digital environment and supports all government agencies through delivering enterprise corporate and digital services, advising agencies, and developing solutions. The organisational model of DCDD, is based the department’s two primary service disciplines, namely, Corporate Services and Digital Services. DCDD’s business units support the department’s operations and include: Digital Services: ICT services, across government systems, agency business systems, technology services, digital communications, data services, enterprise project services and data centre cervices; Corporate Services: workforce services, employment services, information management services, procurement services, finance services, NT Fleet, and NT property management; Regions: recruitment services, accounts receivable and payroll debt recovery; and Office of Digital Government; the strategic digital policy arm of DCDD that guides DCDD service design. There are approximately 1,160 FTE staff within DCDD, employed primarily in administrative roles.
As the CEO of DCDD Ms Robinson was the “person conducting a business or undertaking” responsible for implementing the CHO Direction in that agency and for directing staff in relation to the requirements of that Direction. Ms Robinson stated that it was an offence for a worker to attend their workplace if they were not vaccinated unless they had a contraindication, and that it was also an offence for a person conducting a business or undertaking to allow a worker who did not comply with CHO Directions No. 55/81 to attend the workplace. If an infringement notice was issued for failing to comply with the Directions, the penalty was a fine of 32 penalty units ($5,024) for an individual and 160 penalty units ($25,120) for a body corporate (as at November 2021).
On 13 October 2021, Ms Robinson received an email from the CEO of the Department of the Chief Minister and Cabinet.[2] The email was sent to all NT Government employees advising staff that a new CHO Direction would be implemented to mandate COVID – 19 vaccination for certain workers. Ms Robinson said that the email outlined the categories of workers who would be subject to the Direction and that those workers would need to have the first dose of the COVID-19 vaccine by 13 November 2021 to continue working in the same role and would need to be fully vaccinated by 24 December 2021. Ms Robinson said that the email also advised that there were provisions for exemptions where a person has a proven contraindication to all available vaccines and that staff would be provided with more details pertaining to their specific circumstances by their Chief Executives. The email tendered by Ms Robinson stated that the CHO Direction would affect many public servants and that their Chief Executive would provide more details pertaining to their specific circumstances soon.
On 16 October 2021, Ms Robinson emailed all DCDD staff advising that following the Chief Minister’s announcement in relation to mandatory COVID-19 vaccines for workers and the related CHO Direction No 55, DCDD had been working on developing a digital vaccination register for NT Government agencies with online workflow using MyHR along with processes, information sheets, reporting and online tutorials for managers. Further, Ms Robinson informed staff that the senior executive team was considering the CHO Directions, the circumstances and actions required for the Department, including appropriate arrangements for staff and contractors and that DCDD would communicate the requirements and approach once confirmed. Ms Robinson further informed staff that CHO Direction No 55 required workers in the listed categories to have their first dose of the vaccine by 13 November 2021 and to be fully vaccinated by the 24 December 2021, noting that there were provisions under the Directions for certain exemptions which would require further consideration.
On 22 October 2021, the Commissioner for Public Employment sent an email to all NT Government employees referring to the new CHO Directions, stating that workers who fell into one of the identified categories (eg. contact with a vulnerable person) must not attend the workplace on and from 13 November if they had not received one dose of the COVID-19 vaccine and, on and from 25 December 2021 if they had not had two doses. The advice noted that workers could attend if they had medical evidence of a contraindication to all approved vaccines, and that a register must be kept of the extent to which each worker was vaccinated. The Commissioner noted 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 an exemption). The email went on to advise that CEOs would request employees to provide evidence of their vaccination status which employees could enter into MyHR and that paid miscellaneous leave was available for appointments to get the vaccination and travel time (Appendix F).
On 22 October 2021, Ms Robinson advised all Departmental employees via email, that in accordance with the Chief Health Officer’s directions regarding mandatory vaccination, that all staff are required to record their COVID-19 vaccination status in MyHR by 5 November 2021. Staff who had vaccination appointments booked after the 5 November 2021, were advised that they were required to update their records prior to 12 November 2021. The email stated that staff were also required to provide their manager with evidence of their COVID-19 vaccination status or of a medical exemption that certified they had a contraindication to all approved COVID-19 vaccines and also who could issue these certificates. Mr Robinson’s email also advised that employees were entitled to access paid miscellaneous leave for the duration of their medical appointment/s to receive the COVID-19 vaccine and reasonable travel time associated with those appointments; that additional information was available on the NT Government Central website; and additional questions regarding the vaccination recording requirements could be raised with their manager. Ms Robinson’s email also encouraged people to follow up with their manager and view the information if they had further questions (Appendix G).
On 28 October 2021, Ms Robinson sent an email to all employees of DCDD in the following terms:
“Further to my email last Friday, I am writing to confirm to you all of the mandatory vaccination requirements that will apply across DCDD. This is a consistent approach across government.
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.
I want to acknowledge that for some staff, this is a big decision and you and your staff have access to employee assistance programs. It is important that through this process we support all staff and respect personal decisions.
I take this opportunity to remind people to upload verification of your vaccination status in myHR by 5 November 2021.”[3]
The Applicant does not dispute that she received these communications. The Applicant also gave evidence of attending a meeting conducted by Ms Craven to discuss the policy and its implementation.
The Applicant’s employment history
The Applicant’s evidence, which is not disputed, can be summarised as follows. The Applicant was employed in various roles with the NT Government for more than 23 years commencing in early 1995 or 1996 with the Department of the Chief Minister. From 1999, the Applicant commenced her career in Information Management with the Department of Corporate and Information Services. Prior to her dismissal in 2022, she was employed with DCDD. The Applicant undertook a range of work and in mid-2020, assisted in the trialling of work from home arrangements for more than 18 agency records management staff to prepare for the contingency that, if a COVID-19 lockdown was imposed by the NT Government, staff would be able to continue to work and deliver service to clients.
In mid-2020, the Applicant relocation and co-location of NT Government records staff into DCDD had been accomplished and the Applicant’s NT Government administration position was revised, and she was classified as an SAO1 level S.[4] In that role, the Applicant was responsible for the establishment and development of a new Information Management (IM) Records Centre under the Support Services Stream. The Support Services Stream originally comprised 12 staff members including the Applicant and its function was primarily to provide first point-of-contact for NT Government clients requesting records and information management services.
At the end of March 2021, the Applicant returned from a short period of leave, and was asked in a Senior Managers meeting by the then Director of Information Management, Ms Cassie Spiers, whether the Applicant would volunteer to take on responsibility for the position of Senior Manager in the Records Centre Operations Stream which was vacant at the time. The Applicant agreed to perform the role voluntarily to oversee both the Support Services Stream and the Operation Stream in the Records Centre and was responsible for managing almost 50% of the IM workforce from early March to September 2021. The Applicant received no extra renumeration for the additional workload, responsibilities, or overtime hours, often in evenings and on weekends.
In addition to performing an additional role without renumeration, the Applicant was also required to train a new Records Manager who had no prior experience in the records management field. During her time of overseeing both the Support Services and Operations Stream in the IM Records Centre, the Applicant said that all DCDD IM staff were directed to work from home on several occasions due to COVID lockdowns. The Applicant noted that staff from both streams under her management performed exceptionally well from home, and service was delivered to all clients and stakeholders without any interruptions. The efforts and accomplishments of the Applicant’s team were acknowledged and commended by Ms Spiers.
In late June 2021, the Applicant was involved in a traumatic car accident which left her in a fragile state of mind for several months. The accident occurred during a lunch break one afternoon and away from the office. The Applicant did not return to work for a period of time due to her mental state. She reported the full details of the accident to Ms Spiers who recommended that the Applicant obtain counselling while she was away from the workplace. The Applicant attended counselling with Employment Assistance Services which was available to all NT Government Public Service staff and returned to work.
The Applicant began experiencing difficulties with unexplained pain and swelling in her lower extremities in early August 2021 whilst still undertaking a heavy workload. In early September 2021, the Applicant attended specialist appointments and underwent various tests to determine the cause of the unexplained pain and swelling and to identify appropriate medical treatment. At the time, Ms Spiers offered the Applicant a temporary transfer into another position within the work unit. The position was said to be at level and responsible for the management and leadership of the IM Machinery of Government Project team.
In her new team, instead of managing approximately 25 staff members from the two work units within the IM Records Centre, the Applicant was only required to manage a team of three whilst working closely with 2 other DCDD employees who worked from their interstate home offices. The Applicant recounted that all project meetings with staff, including the 2 interstate staff, were conducted by video conference on Microsoft Teams and many client or stakeholder meetings were also conducted via Microsoft Teams thereby ensuring compliance with COVID-19 safety measures and social distancing.
According to the Applicant, she had established a highly functioning project team by October 2021 and her new team was performing extremely well and was supportive when her health conditions at the time continued to deteriorate to the point that she was unable to walk freely without crutches. On 6 October 2021, the Applicant was advised by an orthopaedic specialist at the Darwin Private Hospital that she would need an operation to resolve one of the more serious health issues affecting her ability to walk. She was then referred to another orthopaedic specialist for a further consultation around 21 November 2021. The consultation was to review scans and discuss surgical procedures and potential date for the surgery. At the same time, the Applicant said she continued to undergo treatments from various specialists for other debilitating health conditions.
In response to questions from me, the Applicant agreed that prior to the termination of her employment, the Applicant did not provide details of her medical conditions or any documentation from her treating medical practitioners in relation to why she had concerns about the safety of vaccinations based on her personal situation. The Applicant said that she did not provide this information because relevant managers of the Respondent already knew about her medical conditions and saw her in the workplaces on crutches because of her swollen feet. The Applicant also maintained that she believed she had the right to maintain privacy over her medical information. In response to the proposition that there was no refusal on the part of the Respondent to consider her medical information, the Applicant said that she was not asked for that information and was only asked for exemptions or proof of vaccination.
In relation to the Applicant’s five weeks of accrued sick leave at the time of her dismissal, the Applicant and I also had the following exchange during her oral evidence:
THE DEPUTY PRESIDENT: All right. Thank you, and just so I can be crystal clear, Ms Goodrem – you’re not arguing that you could – that if you’d been given all your leave you could have gotten through to 15 June and returned to work? ‑No, because I don’t even know if I could have returned to work on 15 June because of my medical condition which still today – I’m being treated for.
So if you get reinstatement, Ms Goodrem, are you fit to return to work? ‑Not right at this moment, no, because I still have my feet which become swollen and painful of a night which I’m still undergoing treatment for. I’m still seeing a psychologist. So it would be on advice from those two people as to whether I’m fit to return to work.[5]
The Applicant’s response to the vaccination requirement
The Applicant’s evidence about her response to the vaccination requirement was as follows. After receiving Ms Robinson’s email dated 16 October 2021, the Applicant attended a 10-minute stand-up briefing conducted by Ms Craven, the Co-ordinator Information Management of DCDD, with approximately 30 staff members. The Applicant said that Ms Craven spoke about various issues in relation to the requirement of mandatory vaccination, including how to record a vaccination status on MyHR, how to show evidence of vaccination and further training for managers on how to use the MyHR vaccination register. Staff members were reminded to be respectful of the differing personal opinions in relation to vaccination and be thoughtful in their conversations in the workplace. The Applicant recalled Ms Craven saying that she and Ms Spiers would work with a dedicated team in Workforce Service to support staff on any matters relating to the new vaccination requirements.
Following that staff briefing, the Applicant further recalled that Ms Craven held another closed-door briefing with several IM managers for about 20 minutes, advising the managers what would be considered acceptable evidence of vaccination and how to sight and confirm evidence of vaccination on MyHR. According to the Applicant, Ms Craven also advised the managers that any staff members who spoke against the vaccine mandate should be reported to Ms Craven or Ms Spiers and if any workers attended work after 13 November without receiving the required vaccination, the police would be called, and the staff member would potentially be issued with a $5,000 fine. In the Applicant’s view, those briefings “felt more like threats to comply with directions rather than genuine consultation with staff.”
The Applicant received the email from Ms Craven, sent to all staff on 25 October 2021 setting out the various issues and arrangements discussed at the briefings and responded on 26 October 2021 as follows:
“Good morning Cassie (In Confidence),
May you please arrange an appointment with Workforce Services for myself in regards the advice below regarding Mandatory vaccinations for staff.
I do not consent to undergoing a medical procedure for experimental mRNA therapies and vaccines to be administered into my body Knowing that the long term studies into the efficacy and safety of these mRNA therapies and vaccines have not been yet been completed I have made an conscientious decision to wait until such information is available.
At the meeting last Friday referred to by Rebecca staff present were also informed that if we arrived at work on the 5th of November without having the first mandatory vaccination that police would be called and we would be escorted from the building I have also been informed that there may be a $5000 fine for not following the CHO directions.
Given that I do not consent to these medical procedures I would like to be informed of my rights to continue current employment and not be discriminated against due to my own personal preferences on how I manage my own personal wellbeing and health (especially given I have caring responsibilities for 2 immediate family members that rely on my continued health and employment).
I do not wish for this request to be discussed with anyone else on the floor as it is my own private business hence an email to yourself only Thank you for your understanding.”
The Applicant on the evening of 27 or 28 October when she was working late, she asked Ms Spiers whether she had a moment to talk about the email the Applicant had sent to her on 26 October regarding her concerns with COVID-19 vaccines. Ms Spiers confirmed that she had read the email and had made enquiries on the Applicant’s behalf and told the Applicant not to worry, as Ms Spiers believed that the Applicant would most likely be able to work from home.
In the following week, the Applicant was called into Ms Spiers’s office and was informed by Ms Spiers that although it had been her understanding that the Applicant would be able to work from home while the vaccine mandate was in effect, this was unfortunately not the case. The Applicant recalled being told by Ms Spiers to prepare herself for the formal advice from the Chief Executive requiring her to provide evidence of her vaccination on the MyHR vaccination register. In the Applicant’s view, Ms Spiers was genuinely apologetic for earlier advice about the possibility of working from home.
The Applicant stated that Ms Spiers also told her not to discuss the matter with anyone and that the Applicant needed to consider what future decisions she would need to make in relation to her employment and the vaccination mandates. The Applicant then explored with Ms Spiers the option of taking her long service leave from 13 November 2021 to remove herself from the workplace, focus on her health issues and have much needed time her family due to the recent death of a family member. The Applicant said that Ms Spiers confirmed that she would support the Applicant’s long service leave request.
On 12 November 2021, the Applicant received a phone call on her way to work and was advised of the second death of a family member. Notwithstanding that she was upset, the Applicant attended work and prepared handover documentation for whoever would next come into her role, had meetings with key clients and stakeholders to inform them of her leave and other temporary arrangements, and cleared all her personal items from her workstation. The Applicant required assistance from a colleague to take her personal items to her car as she was still using crutches. Also on 12 November 2021, the Applicant wrote to Ms Robinson in relation to the vaccination mandate advising that she had already informed Ms Spiers of the reasons why she was unable to upload evidence of her vaccination on to MyHR and that:
“based my own personal medical history and that of my family I have serious concerns that these prescribed mRNA therapies would be harmful to my health. Consenting to these experimental therapies also goes against my moral and religious beliefs. If a traditional “vaccine” were to be made available in the future I would reconsider consenting to undergoing vaccination against COVID-19.”
On 13 November 2021, the Applicant received a reply from Ms Robinson in the form of a letter headed “Direction to Provide Vaccination Information”.[6] In the letter, Ms Robinson noted that the Applicant had not entered her vaccination status on MyHR and directed the Applicant not to attend the workplace until such time she was able to provide evidence of vaccination. Ms Robinson further confirmed that while she approved the Applicant’s long service leave from 15 November 2021 through 14 March 2022, this was intended to be “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”.
On 7 March 2022 – a week prior to the conclusion of her long service leave – the Applicant notified the Respondent by email that she was unfit to return to work for a further four weeks as she was being treated for a medical condition and requested an additional period of personal leave from 15 March to until 15 April 2022. The email stated that: “…I am being treated for a medical condition up until 8 April 2022, until which time I am not fit for work. The treatment relates to the COVID – 19 vaccinations. I will provide further update on my medical status when available and ask that you respect my privacy in regards this matter.[7]
The Applicant said that immediately after making her request for personal leave, she received an email from the Acting Chief Executive Officer, Mr Chris Hosking, attaching a letter dated 7 March 2022 and headed “Inability to Perform Duties – Failure or Refusal to Receive 1st and 2nd Dose of Approved COVID-19 Vaccination”.[8] In the letter, Mr Hosking advised the Applicant that CHO Directions applied to the Applicant and her workplace, that she was prohibited from attending the workplace from 25 December 2021 unless she had received two doses of an approved COVID-19 vaccine, and that Mr Hosking was also required to ensure that the Applicant did not attend the workplace. Mr Hosking stated that he was unable to provide the Applicant with suitable alternate duties in a workplace that was not subject to CHO Directions. Based on the information available to him, Mr Hosking stated that he had reasonable grounds to suspect that inability and performance grounds existed in relation to the Applicant’s employment from 15 March 2022 on the basis that she would be unable to perform duties assigned to her pursuant to s. 44(1)(a) of the PSEM Act and that she would not be suited to perform the duties assigned to her pursuant to s. 44(1)(b) of that Act.
Mr Hosking also informed the Applicant that he was of the view that the suspected inability or performance grounds were of a serious nature and foreshadowed suspending the Applicant from duty without remuneration, from 15 March 2022, pending an investigation and a final decision, pursuant to s. 47 of the PSEM Act. The Applicant was invited to provide her submissions in response to his letter by 4pm on 11 March 2022. Further, the letter acknowledged receipt of the Applicant’s email of 7 March 2022, in which the Applicant advised Ms Watson that she intended responding to Mr Robinson’s letter of 13 November 2021 and would provide a further update on her medical status and that the Applicant would have the opportunity to provide this update to Mr Hosking in writing, in line with her response to his letter.
On 11 March 2022, the Applicant provided an email response to Mr Hosking’s letter of 7 March 2022 attaching a medical certificate stating that “Ms Narelle Goodrem has had a medical condition and will be unfit for work from 14/03/2022 to 13/04/2022 inclusive”.[9] The Applicant said that she did not consider it was appropriate to suspend her from duty without pay, given her medical conditions and her past dedication and commitment to the Department. The Applicant also attached a copy of her Personal Development Plan for 2021/2022 which, the Applicant said, “speaks to my work, ethics, efforts and achievements”. In relation to receiving vaccination, the Applicant stated that:
“I was concerned that the prescribed mNRA therapies (known as COVID 19 Vaccines) could be harmful to my health, given I was being medically treated for severe neurological issues (originated in late August 2021). My concerns stem from the fact that these “vaccines” are still under stage 3 trial and have only been given provisional approval from the relevant authorities. Also any long term safety risks and potential adverse reactions will not be fully known until the end of the trial in early 2023. As only I can be fully responsible for the decisions I make in relation to my health I was at the time not comfortable to provide voluntary consent to receive these vaccines when I do not have all the required information at hand to make such an informed decision.”
I do believe that there is reasonable evidence for you to be satisfied that I am unable to return to the workplace to resume my current role as a Senior Manager Information Management given I am still suffering from and receiving treatment for a medical condition which was present prior to the announcement and implementation of the CHO Direction - No 55.
Chris I would seek to be able to use any sick leave (and other leave entitlements) I am entitled to whilst trying to recover from ongoing illness.
Please Note: I will make myself available where able for the purpose of enquiries relating to this matter.”
The Applicant received a reply from Mr Hosking in a letter dated 14 March 2022. In the letter, Mr Hosking informed the Applicant that he had considered her response and confirmed his decision to suspend her from duty without remuneration effective 15 March 2022. Mr Hosking noted that the medical certificate did not state whether the Applicant had any contraindication to all approved COVID-19 vaccines, nor did it provide sufficient information to support the request for extending her leave. Mr Hosking further noted that the Applicant did not indicate whether she intended to be vaccinated or to apply for a Commonwealth exemption certificate. In addition, Mr Hosking stated that:
“I am of the opinion that, because you do not have a recorded MyHR status indicating compliance with the CHO 55 Directions and you do not have a contraindication to all approved vaccines:
·you are not permitted to enter your workplace;
·I must not permit you to enter your workplace;
·you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
·no alternative duties are reasonably available.
Your suspension will take effect from 15 March 2022 which is immediately after your current leave period and will remain in place pending the making of a final decision in relation to the suspected inability and performance grounds.”
Mr Hosking confirmed that the Applicant’s request to extend her leave was not approved and invited the Applicant to provide further submissions in respect of the particulars as outlined in his correspondence, by 21 March 2022. Mr Hosking stated that he would write to the Applicant further to foreshadow his intentions with regard to the Applicant’s employment, by Wednesday, 23 March 2022 and would take into account all submissions received at that point. On 21 March 2022, the Applicant provided a lengthy email response to Mr Hosking’s letter of 14 March 2022 raising issues which can be summarised as follows:
COVID-19 vaccines are only provisionally approved by the “Australian Drug and Food Administration (FDA)” and although termed “vaccines” are in fact “experimental mNRA (sic) gene therapies”;
The Applicant sought clarification that “sufficient information” to extend her leave could only have been granted through:
“1. Evidence of having taken an FDA provisionally approved Covid-19 Vaccines (experimental mRNA therapies) or;
2. Medical exemption indicating a contraindication to all FDA provisionally approved Covid-19 Vaccines (experimental mRNA therapies), and NOT
3. An extension of leave using available sick leave entitlements (currently 5+ weeks) with medical certificate advising I was not fit for work given I was still being treated for a medical condition.”
The Applicant’s medical condition was diagnosed and her treatment commenced in August 2021 – a medical condition which resulted in her having swollen and painful lower extremities which at times prevented her from walking without crutches and was still affecting her at that time – and notwithstanding her medical conditions, the Applicant remained “committed to turning up to work every day (with the assistance of medicated pain relief) to lead and assist my work unit with heavy workloads to meet non-negotiable deadlines set by the Department.”
The Applicant’s view that “the taking of the experimental mNRA (sic) therapies” went against her moral and religious beliefs given that such therapies have been developed “using cell lines from aborted foetuses”;
On 26 October 2021 the Applicant had requested a meeting with DCDD’s workforce services to discuss her concerns and issues and this had not been facilitated by Ms Spiers;
Ms Spiers had indicated to the Applicant that there may be an option for her to work from home, which would have been reasonable given past practice and the Applicant’s role in establishing arrangements for staff to work from home during the previous year;
In November 2021, upon being informed that she could not work from home and that she should prepare herself to receive a letter in relation to her vaccination status, the Applicant decided to put her health and family first, and take long service leave, which she had been saving for forecast surgeries;
There was no consultation with the IM leadership team or any staff in relation to any “Change Management” or “Risk analysis” for ongoing operations during COVID-19 leading up to the implementation of the CHO Directions. No consultation was held within the workplace as to “how changes to operations and the work environment would affect individual and the group as a whole”;
Vaccines will remain experimental until 2023, are unproven in effectiveness and safety and long-term outcomes are unknown;
The Applicant requested that she be permitted to access her accrued sick leave for the period from 15 March 2022 to 14 April 2022 and thereafter, to return to her role working from home on a temporary basis until “all safety data has been released by the FDA on all experimental mNRA (sic) therapies” and until she was able to make a fully informed decision with her medical practitioner in relation to receiving the vaccine; and
The correspondence to the Applicant threatening suspension and possible termination of her employment breaches her rights not to be subjected to scientific experimentation or treatment without full, free, and informed consent “per s. 10 of the 1688 Bill of Rights” and the Applicant could not currently give voluntary consent to being injected on the basis of fears for her physical wellbeing and safety.
On 29 March 2022 Mr Hosking wrote to the Applicant referring to his letter of 14 March and acknowledging the Applicant’s response to that letter on 21 March 2022. Mr Hosking’s correspondence:
clarified that “sufficient information” included advice of actions undertaken by the Applicant to demonstrate her intention to comply with the CHO Directions either by receiving an approved vaccination, having scheduled an appointment to receive a COVID-19 vaccination, or confirmation that she had commenced an application to the Commonwealth for a medical exemption on the basis of a permanent or temporary contraindication to all approved COVID-19 vaccines;
in relation to the Applicant’s concern about the interaction between the COVID – 19 vaccination and her existing medical condition, the Applicant had an option to work with her medical practitioner to submit an application for COVID – 19 vaccination exemption to the Commonwealth and to date had not indicated that such application had been made;
confirmed the suspension given the Applicant had not indicated that she intended to meet the vaccination requirements;
advised that given the Applicant’s previous response did not provide confirmation that she intended to meet the requirements of CHO Direction, that he considered suspension of employment to be appropriate;
advised the Applicant that access to Personal Leave was unavailable, but that she was entitled to access recreation leave or long service leave;
noted that the Applicant (as previously) had not provided medical evidence of a temporary or permanent contraindication to all approved vaccines and nor had she provided evidence of working with her medical practitioner to submit an application for COVID-19 vaccination exemption to the Commonwealth;
advised the Applicant that to date she had not indicated that she had applied for a medical exemption and that the medical certificate provided (dated 11 March 2022) stated that she was unfit for work due to a medical condition, however, it did not state whether the Applicant had either a temporary or permanent contraindication to all approved COVID-19 vaccines.
addressed the Applicant’s concerns regarding lack of consultation with the IM Team regarding implementation of the CHO Direction by reference to communications regarding the Directions sent by the CEO of the Chief Minister’s Department on 13 October 2021 to all staff, the Commissioner for Public Employment on the 22 October 2021 to all staff, and that Ms Robinson had provided to all Departmental staff on 22 and 28 October 2021;
agreed with the Applicant that the IM Unit did an outstanding job of working from home during lockdown, however advised that this was not a sustainable model long term, and even when employees work from home, there is an expectation that they would be able to return to the workplace as and when required;
acknowledged that dealing with these matters and receiving correspondence of this nature can be difficult, however, advised that employers were required to ensure that employees meet the requirements of the CHO Directions and correspondence to her was in accordance with those obligations and encouraging the Applicant to utilise the EAP services; and
advised the Applicant of his findings, and that as she remained unvaccinated and the A/CEO was not able to provide suitable alternative duties, he was satisfied, on reasonable grounds, that there were inability and performance grounds because she was unable to perform the inherent requirements of her position.
Mr Hosking went on to advise that, given there were inability and performance grounds in relation to the Applicant’s employment, that reasonable and appropriate remedial action must be considered under s. 46 (1) of the Act, and given the Applicant had not received an approved COVID-19 vaccination, none of the options under ss. 46(l)(a) to 461(b)(iii) of the PSEM Act (including training, reduction in salary, or transfer to alternate duties) would remedy her inability to attend the workplace to perform her duties. In the circumstances, the Applicant was advised that the only appropriate and reasonable action available was to terminate her employment under Section 46(l)(c) of the Act, but before that action was taken, the Applicant was invited to provide a response in writing, by COB 31 March 2022, as to the reasons why her employment should not be terminated. On 31 March 2022 the Applicant responded advising that she had nothing further to provide and noting that the letter of the 29 March 2022 does not refer to the fact that she had previously advised that religious beliefs prevent her from taking these experimental vaccines.
Legislative Basis for Performance and Process
Part 7, Employee Performance and Inability of the PESM Act, Employment Instruction No. 6, Performance and Inability and Employment Instruction No. 3, Natural Justice, tendered by Ms Robinson, set out the legislative regime for dealing with the Applicant’s circumstances. Relevantly, these provide:
(i) There are inability or performance grounds for an employee if the employee is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason) (s44(l)(a)); or is not suited to perform, or capable of efficiently performing, those duties (s44(l)(b).
(ii) If a CEO or delegate is satisfied, on reasonable grounds, that there are inability or performance grounds (s44(2)), the CEO may:
a. take no further action (s46(l)(a));
b. order training counselling or other remedial activities (s46(l)(b)(i));
c. reduce the employee’s salary within the range applicable to the employee’s designation (s46(l)(b)(ii));
d. transfer the employee to perform other duties in the Agency or seek to transfer to another agency (s46(l)(b)(iii)); or
e. terminate the employee’s employment (s46(l)(c)).
(iii) If the suspected inability or performance grounds are of a sufficiently serious nature, the CEO may suspend the employee with or without pay pending a decision (s47);
(iv) an employee on suspension without pay may, during the suspension, take any long service leave or recreation leave the employee is entitled to (s47(5)(b)).
(v) natural justice must be afforded (the employee informed of any adverse material, provided with a reasonable opportunity to respond, the decision maker to impartially consider the employee’s submissions prior to making a decision (E13 and 6).
The decision to dismiss the Applicant
Ms Robinson said that on 6 April 2022, having returned to the position of CEO, and after considering all of the preceding information, and discussing the matter with the previous Acting CEO, she wrote to the Applicant, referring to the letter of 29 March 2022 (erroneously referred to by Ms Robinson as a letter dated 24 March 2022). In that correspondence, Ms Robinson advised the Applicant that after carefully considering all of the evidence, including the Applicant’s previous submissions and response received 31 March 2022, and noting her earlier raising of her religious beliefs preventing her from taking any COVID-19 vaccines, the findings were maintained.
Ms Robinson also advised the Applicant that her personal beliefs did not outweigh Ms Robinson’s obligations as an employer, and to the broader community, to meet the CHO Directions and that Ms Robinson maintained the earlier findings that because the Applicant had not received the second dose of COVID-19 vaccine, the CHO Directions required that she must not attend the workplace and that Ms Robinson must not allow her to do so. Further, Ms Robinson advised the Applicant that she was not able to provide other suitable alternative duties in a workplace that was not subject to the CHO Directions and therefore, the Applicant was unable to perform the inherent requirements of her duties. On this basis, the only reasonable and appropriate remedial action available to Ms Robinson was to terminate the Applicant’s employment under 46(l)(c) of the Act.
During cross-examination, Ms Robinson was asked whether she had considered allowing the Applicant to work from another location instead of the usual workplace and said:
“…Okay, we through the Department had arranged where some people were able to work from home for part of their work and work in (indistinct). We don’t have staff working 100 per cent all of the time working from home. We had worked through that process through a range of trials and rostering arrangements across the department in varying capacities and had formed the view that there benefits in places for people working from home but there needed to be contact back with the workplace. So we didn’t have anyone that was not in a position of coming into the workplace at some point.”[10]
Ms Robinson also agreed that there are staff of the DCDD who live in other States. However, the numbers of such staff are limited, and they perform roles such as highly specialised programming. These staff are also brought to Darwin at least twice a year to the workplace to give them connection with their work team.[11] In response to a question from me as to whether she considered allowing the Applicant to work from home, Ms Robinson said that this was considered by the Acting CEO while she was on leave, and the decision had been made that this was not appropriate. Ms Robinson also said that for various reasons relating to rostering and based on trials, it was concluded that the best option was for a mix of working from home and in the workplace, and it was not considered appropriate to allow staff to work 100% of the time from home.[12]
In response to the proposition that the Applicant requested a meeting “face to face” with HR to discuss her personal situation, including her medical conditions, Ms Robinson said that it appears that consultation with the Applicant could have been better handled.[13] In re-examination, Ms Robinson was asked whether Ms Goodrem was actually managing staff which would have made it difficult to work from home and agreed that Ms Goodrem was the senior staff member in the team she was managing. Given that this was new evidence, Ms Goodrem was given an opportunity to cross-examine further, and did not take that opportunity.[14]
Submissions
In her submissions, the Applicant contended that the OCPE’s interpretation of the CHO Directions No 55 (2021) and blanket application of the mandate to all NTPS staff (including consultants and contractors) to ensure a consistent approach across government, was unfair. The Applicant also asserted that there was a lack of consultation with all staff in the Information Management work unit directly affected by the mandates as required under s. 47(1) of the Work Health & Safety (National Uniform Legislation) Act 2011 (NT) (WHS Act). In this regard the Applicant said that the OCPE had a duty to consult with workers directly affected by a matter relating to work health or safety, and consultation was required by s. 48 of the WHS Act.
The Applicant also contended that there was a lack of appropriate action/response from her employer, Workforce Services staff and supervisor (Ms Spiers) for consultation when she formally requested on 26 October 2021, to be informed of her workplace rights and to continue in her current employment and not be discriminated against for personal health needs. Further the Applicant contended that the Respondent had been unreasonable in relation to the following matters:
Terms and Conditions being placed on the taking of the Applicant’s Long Service Leave entitlements by the Chief Executive DCDD;
Refusal by the A/Chief Executive DCDD to allow the Applicant to access 5 weeks of accrued personal leave supported by a medical certificate stating that the Applicant was unfit to return to work;
Inappropriate use of s. 44 of the PSEM Act (Employee performance and inability) for serious misconduct whilst on leave and requesting access to personal leave to continue ongoing medical treatment;
Lack of appropriate consultation during investigation stage of the Applicant’s suspension and right to a face-to-face meeting with support person to respond to investigation findings;
No explanation behind rationale or reasoning as to why the Applicant was denied the option to work from home as she had previously been directed to do when it suited the Respondent’s needs and where the ability to work from home was being provided to other Northern Territory Government staff and colleagues in the Applicant’s work Unit for various periods of time.
In relation to her assertion that she was unreasonably denied the ability to work from home, the Applicant tendered Work Rosters requiring staff to work from home in early 2022 and data from DCDD Annual Report 20/21 showing numbers of staff that permanently work from home, or work from home due to Covid-19. The Applicant also asserted that there are two IM MoG Project Team based DCDD staff members who are based at interstate locations and work from home as well as other Northern Territory government agency staff that the Applicant is aware have been afforded flexibility to work from home under CHO Directions Part 2 (Directions 11 and 12) which relevantly provide:
“11. 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.
12. 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.”
The Applicant also referred to changing CHO Directions for high-risk places and requirements for a COVID Booster, relaxation of restrictions allowing unvaccinated persons to enter the Territory; and revocation of vaccination mandates, which occurred prior to 6 April 2022 when the Applicant was dismissed. The Applicant also stated that in early August 2022, it was brought to her attention by former work colleagues that Ms Craven (the then Acting/Director Information Management DCDD) sought out a friend and previous work colleague of the Applicant to take up an opportunity of employment in the DCDD Information Management work unit with the Project team the Applicant had previously led, at the same SAO1 level, to continue such project work. According to the Applicant, that person was formerly employed in the Information Centre, NT Power and Water but had been dismissed from employment as he also failed or refused to submit to taking the COVID-19 vaccinations.
Further, the Applicant stated her belief that Ms Craven heavily influenced the decision-making process by DCDD executive for the Applicant’s employment to be terminated, due to the number of times the Applicant (and other senior staff in the work unit) reported Ms Craven for inappropriate behaviours including recruitment processes, denying many IM staff promotional opportunities. The Applicant said that the termination of her employment not only caused serious financial loss, hardship and emotional harm to her but also denied her the opportunity of promotion to an SAO2 position in the workplace, which the new A07 staff member she had trained was afforded in the Applicant’s absence.
The Applicant sought reinstatement and compensation for her unfair dismissal contending that she had done nothing wrong, had breached no laws and directives and had actively sought to explain her concerns, personal position, medical needs, and family requirements. The Applicant also said that she was supportive of all staff in the IM team that were under her supervision at the time of the CHO directions and of her supervisor and the directive of her employer in carrying out activities associated with preparing the office so that work could continue during the COVID-19 Pandemic. Further, the Applicant contended that if the Respondent had reached out and met with staff to allow them to express concerns to managers and directors, her situation could have been avoided. In this regard, the Applicant could have explained her medical concerns and provided hard copies of medical information to a select few, rather than have that information put in emails for people the Applicant did not know, to read.
The Respondent submits that the Applicant was dismissed following due process, on the basis that the Applicant was not able to attend work as she had not obtained the required vaccination or evidence of an exemption. This led to the Applicant being unable to perform the inherent requirements of her duties. In this regard, the Applicant was not able to attend work, and the CEO/Acting CEO was unable to provide the Applicant with suitable alternative duties in a workplace that was not subject to the CHO Directions, as all jobs within DCDD were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated. This led to the Applicant being unable to perform the duties she was assigned to perform, and falling within section 44 of the PSEM Act, inability and performance.
The Respondent submits that the Applicant’s dismissal was not harsh, unjust or unreasonable for the following reasons. The CEO’s Witness Statement demonstrates there was a valid reason for the dismissal, which related to the Applicant’s capacity to perform the inherent requirements of her job (paragraphs 29, 32, 34 and 36 of the Statement). CHO Directions were in place which in essence provided that if a worker fell within one of four categories, they were precluded from attending work and their employer was precluded from allowing the worker to attend if they had not received an approved COVID-19 vaccine within specified times. An offence would be committed if the CHOs Directions were breached (paragraph 18 of the Statement).
The CEO had determined that the mandatory vaccination requirements applied to all employees within DCDD (paragraph 24 of the Statement). At the relevant time (13 November 2021) the Applicant had not received a first dose of an approved COVID-19 vaccination and had not provided acceptable evidence (as set by the CHO Directions) of a contraindication to the approved vaccines. The CEO approved the Applicant taking Long Service Leave from 15 November 2021 to 14 March 2022 to provide the Applicant with further time to obtain the required vaccination or evidence of an exemption. The leave was granted on the condition that if the Applicant failed to provide the required vaccination or evidence of an exemption prior to the expiration of her leave, that action may be taken in relation to her employment under the Act.
As the Applicant remained unvaccinated prior to the end of her leave, on 7 March 2022 the Acting CEO, Chris Hosking (A/CEO) foreshadowed an intention to suspend the Applicant from duty without remuneration from the 15 March 2022 based on suspicion that after the 15 March, the Applicant may be unable to, or not suited to perform the duties that had been assigned to her. The A/CEO provided the Applicant with an opportunity to respond prior to any decision was made to suspend her from duty (paragraph 29 of the Statement). The Applicant subsequently responded confirming that she had still not received an approved COVID-19 vaccination and provided a medical certificate that did not indicate a contraindication to all approved vaccines.
These circumstances resulted in the Applicant not being able to attend work, and the CEO/Acting CEO was unable to provide the Applicant with suitable alternative duties in a workplace that was not subject to the CHO Directions, as all jobs within DCDD were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated, leading to the Applicant being unable to perform the inherent requirements of her job, and falling within s. 44 of the PSEM Act, inability and performance.
The actions available to the Acting CEO under s. 46 (1) of the Act, included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. In circumstances where the Applicant was not vaccinated by the relevant dates specified by the CHO Directions, and unable to be placed in alternate duties where the CHO Direction did not apply, the CEO had no alternative but to terminate the Applicants’ employment. In relation to procedural fairness, the Respondent submitted that the Applicant was notified of the reasons why her dismissal was being considered, and provided multiple opportunities to respond. Following the CHO’s Direction issued on 13 October 2021, at least five notices were sent to all employees in DCDD between 13 October 2021 and 28 October 2021 advising of the CHO Direction, its requirements and its impact on employment. Following this advice, the Applicant received specific and detailed advice on 13 November 2022, 7 March 2021, 14 March 2021 and 29 March 2022 prior to the eventual termination on 6 April 2022. The Applicant was invited to make submissions on 3 of those occasions and the Applicant made submissions on 8 March 2022, 11 March 2022, 21 March 2022 and 31 March 2022. Each of these responses were considered by the CEO/Acting CEO before deciding the next step in the process and the final decision to terminate the Applicant’s employment.
The question of whether there was an unreasonable refusal by the employer to allow a support person to assist in any discussions relating to the dismissal did not arise during the inability proceedings. The dismissal does not relate to the Applicant’s unsatisfactory performance. The Northern Territory Public Service (NTPS) is considered one of the Territory’s largest employers with approximately 22,000 staff and has a Human Resource function that is well resourced, with expertise and capacity.
In relation to the Applicant’s contentions, the Respondent provided the following responses. The Applicant contends that a request to her Director (Cassie Spiers) to arrange a meeting with HR to be advised of her rights to continue employment and not be discriminated against was ignored and that her Director did not feel it necessary as it was more than likely she could work from home. The Respondent notes the Applicant acknowledges that Ms Spiers had a follow up discussion with her in “early November” where Ms Spiers told her she would not be able to work from home. The Respondent also notes that the Applicant’s concerns were addressed in a written letter to her dated the 13 November 2021 and 29 March 2022 including advice to the Applicant that her request for Long Service Leave was approved and her request to work from home was declined, with the reasons provided.
It is acknowledged the Applicant had been receiving treatment for an ongoing medical issue, however, the Applicant did not provide any medical evidence indicating she had a contraindication to all approved vaccines. In relation to the Applicant’s contention that her religious beliefs prevent her from accepting products made from the DNA of another human being (aborted foetus cell lines), the Respondent submitted that the CHO Direction did not provide an exemption from vaccination for workers on religious grounds. Religious belief did not override the Respondent’s obligation as a covered Employer to comply with the requirements of the CHO Directions and require its employees to be vaccinated. If the CEO/ Acting CEO had allowed the Applicant into the workplace without being vaccinated, the CEO/ Acting CEO would have committed an offence against the Direction.
In relation to the Applicant’s claim that instead of being suspended without pay from 15 March 2022, she should have been allowed to access her personal leave entitlements, it was submitted that the PSEM Act empowers the CEO to suspend an employee with or without pay during inability proceedings. The inability process can be commenced and finalised at any time where circumstances warrant and if suspension is implemented, this will result in existing leave arrangements being altered. Once the suspension was in place, under the Act, personal leave was not available to be taken but an employee may use any accrued recreation or long service leave during a period of suspension without pay.
The Respondent submits that it carried out a fair and consultative process of implementing the CHO Directions mandatory vaccination scheme. The CEO arranged for a variety of information tools to be available to staff including information sheets, reporting and online tutorials for managers, and additional information was made available on the Northern Territory Government Central Website. Further to assist managers and supervisors, the CEO arranged for an online presentation, which was made available on the myLearning system via the NT Government Central page. The Applicant was provided with a variety of communications including emails, text messages between the Applicant and her Manager, Ms Cassie Spears that also indicate offers were made to the Applicant to discuss these matters. The Applicant was advised on several occasions that she could contact the Employee Assistance Program if she required support/assistance or Workforce Services for further advice.
In relation to the contention that there was a blanket application of the COVID-19 vaccination mandates to all workers in the NT Government, the Respondent submits that the CEO considered the CHO Directions and decided that they applied to the whole of the DCDD because staff have close engagement with staff from other agencies, share buildings and common areas with staff from multiple agencies, and DCDD has vulnerable employees that work in teams and are people the Department meets with, and the Applicant was advised of these reasons.
Further, the Respondent submits that the Applicant’s argument that the direction to be vaccinated breached “Immunisation Guidelines” is misconstrued. The CEO did not direct the Applicant to get vaccinated, and whether the Applicant was vaccinated or not, was entirely the Applicant’s choice. However, if an employee who was required to be vaccinated under the CHO Directions did not receive the vaccine, they could not enter the workplace and a CEO could not allow them to enter the workplace with the effect that they would most likely be the subject of inability proceedings under the Act. The Respondent submits that the evidence provided demonstrates the Applicant’s dismissal was not harsh, unjust or unreasonable.
I turn now to consider the evidence and submissions as required by the criteria in s. 387 of the FW Act, to determine whether the dismissal of the Applicant was harsh, unjust or unreasonable.
Consideration
Whether there was a valid reason for the dismissal – s. 387(a)
Section 387(a) requires the Commission to consider “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)”. A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”[15] The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,[16] and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.[17] The concept of capacity in s. 387(a) as the basis of a valid reason for dismissal, goes beyond the physical capacity or skill of an employee and encompasses situations where employees do not have or maintain a necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. 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.[18] 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.[19]
In the present case, the reason for the Applicant’s dismissal related to capacity rather than conduct. The Respondent’s CEO concluded that there were inability and performance grounds in relation to the Applicant’s employment because of:
a.The Applicant’s inability to perform the inherent duties of her position under s. 44(1)(a) of the PESM Act; and/or
b.The Applicant not being suited to perform the inherent requirements of her position under s. 44(1)(b) of the PESM Act.
The evidence establishes the following matters. On 13 October 2021, the Chief Health Officer of the Northern Territory issued Directions for mandatory vaccination of workers to attend the workplace. The CHO Directions required a person conducting a business or undertaking to ensure that any worker who performs work for the person does not attend the workers’ workplace, contrary to requirements for vaccination set out in the Directions. The CHO Directions applied to inter alia a worker who, during the course of work was likely to come into contact with a vulnerable person (direction 4(a)), or a worker at risk of infection with COVID-19 because the worker is likely to come into contact with a person or thing that poses a risk of infection (direction 4(b)). Vulnerable persons were defined in the CHO Directions to include persons who could not be vaccinated due to a contraindication to all approved COVID-19 vaccinations and Aboriginal persons.
Schedule to the CHO Directions contains provisions to interpret whether the Directions apply to a worker and for directions 4(a) and (b) covering workers who such as those working with particular categories of persons (for example children, disabled or elderly persons or other persons vulnerable to COVID-19) or workers who directly face customers in service industries, health care workers, police and emergency service workers. These provisions were framed on the basis that they included, but are not limited to, the specified workers or settings in which work is performed. While the Applicant was not a worker undertaking work specified in the Schedule and was not working in any of the specified settings, the Government of the Northern Territory made a decision that given the nature of its workforce and customers, most if not all, Northern Territory Public Service workers and contractors needed to be vaccinated to attend its workplaces.
In respect of grounds relating to whether there was a valid reason for dismissal, the Applicant variously contended that the CHO Directions were invalid and that the Respondent should not have implemented the Directions on a blanket basis. The Applicant also contended that there was a lack of consultation by the Respondent about the implementation of the vaccination requirement. Further, the Applicant contended that COVID-19 vaccines are experimental gene therapy, unproven in their effectiveness, and that she had legitimate reasons associated with her health for refusing to receive a vaccination. Additionally, the Applicant maintained that the threats that her employment would be suspended and possibly terminated if she did not receive a vaccination, breached her rights not to be subjected to medical or scientific experimentation or treatment without her full informed consent. Finally, the Applicant contended that the Respondent failed to make reasonable adjustments to allow her to work from home temporarily until all safety data had been released in relation to COVID-19 vaccinations.
The CHO Directions were valid and lawful. To the extent that article 10 of the Bill of Rights 1688 has any application in Australian law, neither the CHO Directions nor the policy adopted by the Respondent, infringed the prohibition on cruel and unusual punishments. Contrary to the Applicant’s submission, the CHO Directions did not discriminate against Aboriginal persons by identifying them as vulnerable. It is well established that Aboriginal persons have higher incidences of chronic conditions that increase the risk of COVID-19 severity and fatality. In any event, the Fair Work Commission is not a Court and does not have power to declare that Directions made by a Chief Health Officer under a law of a State or Territory, are invalid on the grounds of discrimination or otherwise. Nor is the Fair Work Commission empowered to determine whether such directions are unreasonable, disproportionate, or unfair. The Commission carries out its functions according to law and proceeds on the basis that legislation and delegated legislation is valid unless a court says otherwise. As Deputy President Coleman observed in Stevens v Epworth Foundation, the Commission must apply law, not undermine it, by giving effect to a party’s alternative policy position.[20]
However, the Commission, in deciding whether there was a valid reason for dismissal, may determine questions such as 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, where the law permits discretion in relation to its application. In this regard, the CHO Directions provide that employers may make reasonable adjustments to accommodate unvaccinated workers. In considering such questions, the well-established principle that the Commission does not stand in the shoes of the employer and determine what it would do if it was in the position of the employer, is apposite. Rather, the Commission determines whether what the employer did, was within the parameters of a reasonable range of responses, in the circumstances in which the dismissal occurred.
In the present case, the employer was the Commissioner for Public Employment of the Northern Territory, and the Applicant was a public servant employed in a Government Department – DCDD. The introduction of the vaccination mandate on 13 October 2021, by Ms Robinson, the CEO of DCDD, was required by the CHO Directions. At that time, the Northern Territory Government was attempting to manage and control the impact of a global pandemic. The CHO Directions had been assessed by responsible Heads of Northern Territory Government Departments and Agencies, as being applicable to the majority, if not all, public servants in the Northern Territory. 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.
I am also of the view that regardless of whether employees of the DCDD were covered by the CHO Directions, the decision to implement the vaccination policy in that Department was sound, defensible, and well founded. The risks posed by COVID-19 are well documented and were considered by a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[21] (Mt Arthur Coal), handed down on 3 December 2021. In its decision in that case, the Full Bench made findings in relation to the following factual matters, which are relevant in the present case.
“1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times).”[22]
The Full Bench in Mt Arthur Coal also accepted that while a vaccinated person can be infected with COVID-19 and efficiently transmit the virus, vaccination shortens the period when a person is infectious, reducing the overall risk of infection. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death and vaccination is one of the most effective control measures currently available. The Applicant’s contention that her exclusion from the workplace because she was unfairly labelled a risk to others, is not to the point. The Applicant’s status as an unvaccinated person posed a risk to her co-workers and to herself. As a vaccinated person, if the Applicant was to become infected, the period when she was infectious would likely have been reduced. Further, the impact of becoming infected on the Applicant – who was arguably at risk of adverse impacts from COVID – 19 due to her health issues – would have been reduced had she been vaccinated.
I do not accept that the implementation of the vaccination policy was unreasonable based on failure to consult employees. Firstly, the introduction of the vaccination policy was mandated by the Chief Health Officer of the Northern Territory, and as a result, implementation was not optional. The Workplace Health and Safety Act (NT) (WHS Act) is based on model laws enacted in all jurisdictions except Victoria and Western Australia. The requirements in the WHS Act are that a person conducting a business or undertaking must, so far as is reasonably practicable, consult with workers who are, or are likely to be, directly affected by a matter relating to workplace health or safety. It is also the case that the content of any specific requirement to consult is determined by context, including the circumstances in which the obligation is enlivened. In the circumstances of this case, where the vaccination policy was mandated by the CHO Directions, and where failure to implement the policy would have rendered Ms Robinson liable for penalties for non-compliance, the content of the consultation obligation did not include whether the policy should be implemented.
It is also the case that DCDD employees were advised that the implementation of the vaccination requirement was under consideration and received several communications about the policy before it was implemented. I also accept Ms Robinson’s uncontested evidence that information tools were available to staff, including information sheets, reporting and on-line tutorials for managers, information on the Northern Territory Government Central Website, an on-line presentation, and availability of an employee assistance program.
I do not accept that the Applicant should have been allowed to work from home, and that a refusal by the Respondent to her request to do so, results in the dismissal not being for a valid reason. The Applicant was a team leader responsible for training staff and I accept that 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. 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. At the time the Applicant was dismissed, the expected duration of the CHO Directions was unknown and it was not unreasonable for the Respondent to refuse to allow the Applicant to work from home until the Directions were revoked or there was a vaccine that the Applicant was prepared to receive.
I do not accept the Applicant’s submissions that COVID-19 vaccinations provisionally approved for use in Australia are “experimental mRNA therapies”. All COVID – 19 vaccinations available at the time the Applicant was dismissed, were approved for use in Australia. The fact that the approval is described as “provisional” does not render the approval doubtful. The Australian Technical Advisory Group on Immunisation (ATAGI) is responsible for providing advice to the Commonwealth Government and to the Australian public, on the National Immunisation Program and other immunisation issues. ATAGI’s role also includes providing advice to research organisations on current immunisation research and areas that need more research and consulting with relevant organisations to produce the Australian Immunisation Handbook. Its membership comprises eminent experts in the field of immunisation and related disciplines and also includes persons with expertise in these areas as they relate to particular groups such as children, pregnant women and persons of Aboriginal and Torres Strait Islander descent.
ATAGI has monitored and evaluated the progression of COVID – 19 in weekly meetings since the advent of the Pandemic and has updated its advice regularly. At the time the CHO Directions were issued and the Applicant was dismissed, the advice from ATAGI was that vaccination was an intervention to “prevent infection, transmission and severe disease.” According to ATAGI, provisional approval means that a full and thorough assessment has been made of the vaccinations, and they were approved by the Therapeutic Goods Administration (TGA) after a complete assessment of all available data. The TGA has engaged early with pharmaceutical companies about vaccines and is accepting clinical data as it becomes available rather than at the end of trial processes, which speeds up the review process. The rapid movement in the approval process of vaccines is understandable in circumstances where there has been unprecedented levels of funding as combatting the pandemic is a global priority. Advice continues to be that risks associated with vaccination are significantly outweighed by benefits of being vaccinated.
The Respondent was not required to have a discussion with the Applicant about the efficacy of COVID-19 vaccinations or her views about them including information the Applicant tendered in these proceedings. The Respondent was legally required to comply with the CHO Directions and consistent with those Directions could not allow the Applicant to access the workplace. Further, the Applicant’s views about the efficacy of COVID-19 vaccinations and her religious views, do not trump the rights of her colleagues to a workplace where all reasonable steps are taken to minimise their risk of contracting the virus. Nor do the Applicant’s views outweigh the responsibility of Ms Robinson, as a person conducting a business or undertaking, to take all reasonable steps to maintain a safe and healthy workplace for employees of DCDD.
The Applicant was not forced to receive experimental gene therapy and the implementation of the policy did not place her under duress or involve coercion. The Applicant exercised her right to choose whether to receive a vaccination and chose not to do so. The Applicant was entitled to her opinions about the efficacy and safety of COVID-19 vaccinations and within her rights to decline to become vaccinated, or to provide the Respondent with the information it requested – proof of vaccination or an exemption certificate as specified in the CHO Directions. The Applicant chose not to become vaccinated in circumstances where she could not provide the required exemption certificate. Although this was a difficult choice and resulted in the loss of the Applicant’s long-term employment, it was a choice nonetheless and resulted in her legal exclusion from the Respondent’s workplace. As the Respondent could not reasonably provide alternative working arrangements that would allow the Applicant to perform work, it had no option other than to dismiss her.
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.
Whether the Applicant was notified of the reason for her dismissal – s. 387(b)
The Applicant was notified of the proposed reason for her dismissal in correspondence dated 24 March 2022 and that it had been decided to dismiss her for that reason, in further correspondence dated 6 April 2022.
Whether the Applicant was given an opportunity to respond to the reason – s. 387(c)
The Applicant was given an opportunity to respond to the reason for dismissal on several occasions and took advantage of that opportunity.
Whether Applicant was refused a support person – s. 387(d)
The Applicant did not request a support person, and the Respondent did not refuse, unreasonably or otherwise, to allow the Applicant to have a support person in discussions relating to the dismissal.
Whether Applicant was warned of unsatisfactory performance – s. 387(e)
If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The Applicant’s employment was not terminated for unsatisfactory performance, but for issues relating to her capacity.
Impact of size of Respondent’s enterprise – s. 387(f) and (g)
The Commission is required by ss. 387(f) and (g) to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal. The Applicant’s dismissal was carried out by correspondence and neither Ms Robinson nor any person involved in the decision to dismiss the Applicant, met with her to discuss the dismissal and the reasons for it.
The practice of conducting the dismissal of an employee entirely by correspondence, is generally not desirable. I agree with Ms Robinson’s observation that the communication aspect of the Applicant’s dismissal could have been better handled. However, it is also the case that the Applicant could not legally attend the workplace at the time she was dismissed, because she had not complied with the CHO Directions in relation to having received an approved COVID-19 vaccination, effectively precluding a face-to-face meeting. Further, other than a request to meet with a HR representative before the dismissal was proposed, the Applicant did not request a meeting prior to her dismissal and did not take up an invitation in the letter of 24 March 2022, to contact workforce services if she wished to discuss the matter of her proposed dismissal or in the letter of 6 April, in relation to confirmation of the dismissal.
Other relevant matters – s. 387(h)
I have considered that the Applicant had some 23 years of service with various Northern Territory Government Departments and that the Applicant’s work record was unblemished. It is also clear that the Applicant was hardworking and dedicated, even during periods when she was suffering from debilitating medical conditions. It is clear that the ending of the Applicant’s career in these circumstances has been devastating for her and that she has suffered great distress as a result.
I found the Applicant to be a truthful witness and I accept that she genuinely holds the beliefs that resulted in the loss of her employment. Unfortunately, as a result of those beliefs, the Applicant was unable to work, and the Respondent was prohibited from allowing her to attend the workplace.
I do not consider the failure by HR representatives to meet with the Applicant to discuss her issues with vaccination to render the dismissal unfair. The Applicant could have provided more detailed medical information to justify her reluctance to be vaccinated and it was not reasonable for her to simply rely on the knowledge of her manager about her medical conditions, when the Acting CEO and later Ms Robinson, were requesting the Applicant to respond to the show cause letter by providing reasons why she should not be dismissed. In circumstances where the Applicant was being clearly informed that it was likely she would be dismissed for incapacity due to her non-compliance with the CHO Directions, it was incumbent on her to provide all information to the decision maker. Further, even if the Applicant was given an opportunity to meet with a representative of the Respondent either before the show cause process, or prior to her dismissal, I do not believe that anything the Applicant said would have changed the outcome, given my conclusions about the matters the Applicant raised in these proceedings.
I have also considered the Applicant’s contention that her dismissal was unfair because she was not permitted to take her accrued sick leave instead of being dismissed. I do not agree that this makes the dismissal unfair. The Applicant had been granted an extensive period of long service leave prior to her dismissal. While an employer cannot dictate what an employee does while on long service leave, it had been suggested by the Applicant’s manager that the Applicant consider her position in relation to vaccination while taking that leave.
At the point the period of long service leave concluded, the Applicant was not compliant with the CHO Directions. As a result, there were performance or inability grounds under s. 44 of the PSEM Act that, pursuant to s. 47, were of such a serious nature that the Applicant should not (and indeed could not) continue performing the duties she was assigned to perform. In those circumstances, the CEO of the Respondent had the discretion to suspend the Applicant without pay and exercised that discretion. As a result, the Applicant could not take sick leave during the period of the suspension.
Further, even if the Applicant had been allowed to take her accrued sick leave, she would not have become compliant with the CHO Directions. The Applicant’s suspension took effect from 15 March 2022. The CHO Directions remained in place until 15 June 2022. Accordingly, when the five weeks sick leave was exhausted, the Applicant would still have continued to refuse to comply with the Directions with the consequence that the Respondent would still have been prohibited from attending its premises for work. The Applicant also indicated, in response to a question from me, that she did not assert that had she been allowed to take leave, she would not have been dismissed.
Conclusion
Having regard to s. 387 of the FW Act, I consider that Ms Goodrem’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
N Goodrem, the Applicant.
H Glew, the Respondent.
Hearing details:
2022.
Brisbane (by Microsoft Teams):
13 December.
[1] Public Sector Employment and Management Act 1993 (NT) s. 3 (definition of ‘employee’), s. 12.
[2] Exhibit R1, Annexure D.
[3] Exhibit R1 Annexure H.
[4] Exhibit A1, Annexure G.
[5] Transcript PN178 – 179.
[6] Exhibit A1 Annexure A.
[7] Ibid.
[8] Ibid.
[9] Exhibit A1, Annexure A.
[10] Transcript PN267.
[11] Transcript PN268 – 272.
[12] Transcript PN317.
[13] Transcript PN314.
[14] Transcript PN324 – 328.
[15] Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[16] Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
[17] Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
[18] Isabella Stevens v Epworth Foundation [2022] FWC 593.
[19] DA v Baptist Care SA [2020] FWCFB 6046 at [28].
[20] Op. cit. at [27].
[21] [2021] FWCFB 6059.
[22] Ibid at [29]
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