Thomas Wilfred Edwards v S & S Webster Investments Pty Ltd T/A Kangaroo Bus Lines - [2022] FWC 2562

[2022] FWC 2562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Thomas Wilfred Edwards
v

S & S Webster Investments Pty Ltd T/A Kangaroo Bus Lines

(U2022/4832)

DEPUTY PRESIDENT DOBSON

BRISBANE, 29 SEPTEMBER 2022

Application for unfair dismissal remedy – no medical exemption – application terminated for failure to comply with a lawful and reasonable direction – McKenzie friend - vaccination policy – application dismissed.

On 27 April 2022, Mr Thomas Edwards (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with S & S Webster Investments Pty Ltd trading as Kangaroo Bus Lines (Respondent). In summary, the Applicant was terminated from his position as a bus driver on 11 April 2022 after failing to comply with the Respondent’s policy to be fully vaccinated against Covid-19 or provide evidence of a medical exemption by 1 April 2022 (the direction). The Applicant contends that the Respondent’s conduct was unlawful and gives rise to his unfair dismissal claim. The Applicant seeks compensation as a remedy.

Background and Chronology

The Applicant was employed as a bus driver with the Respondent for approximately 14 years, having commenced his employment in or around March of 2008.

As stated in its Form F3 Employer Response, the Respondent is in the passenger transport industry and is a provider of bus services in Queensland, Australia. The Respondent provides public transport to the general public, regardless of the passenger’s vaccination status and regardless of whether the passenger wears a mask or not. The Respondent was appointed, and remains, the Queensland Government’s quarantine transport provider, conducting all quarantine transfers for travellers coming into the state. The Respondent submitted that this increased the possibility of exposure of its staff to Covid-19. The Respondent further submitted that the charter arm of its business was impacted greatly due to cancellations or being unable to run the charters due to Covid-19 restrictions and that when restrictions were lifted there were a number of clients who had put into place requirements for vaccinated staff to perform their services. As a bus driver, the Applicant had regular contact with members of the public including school aged children and the elderly.[1]

On 23 December 2021, the Respondent circulated to its employees, including the Applicant, its proposed Covid-19 Vaccination Policy (the Draft Policy) and commenced a consultation process with staff in relation to the Draft Policy. The Draft Policy proposed mandatory vaccination against Covid-19 for existing employees but noted that employees may have legitimate reasons for not wishing to be vaccinated. ‘Legitimate Reasons’ were defined to include “a Medical Contraindication to Vaccination or a reason which is protected by law.”

On 26 December 2021, the Applicant raised objections to the Draft Policy and indicated that he did not intend to be vaccinated in an email to the Respondent.

On 5 January 2022, the Applicant emailed a document to the Respondent containing further objections to the Draft Policy.

On 6 January 2022, the Respondent indicated in an email to the Applicant that it would not respond in detail to the objections raised in the Applicant’s document of 5 January 2022 and invited the Applicant to discuss his concerns with the Respondent at a time convenient to him.

On 20 January 2022, the Applicant attempted to send the Respondent further documents via email containing objections to the Draft Policy. The Respondent indicated in an email to the Applicant that it was unable to access those documents and invited the Applicant to resend them. These documents were provided to the Respondent on 25 January 2022.

On 28 January 2022, the Respondent reminded its employees via a newsletter that feedback on the Draft Policy was required to be provided before 31 January 2022. This information also appeared on a television display in the Respondent’s drivers’ room.

On 31 January 2022, the consultation period for the Draft Policy ended.

Also on 31 January 2022, the Applicant sent the Respondent an email containing further objections to the Draft Policy.

On 7 February 2022, the Respondent notified its employees via a link in an SMS message, including the Applicant, that the consultation period for the Draft Policy had ended.

On 25 February 2022, the Respondent notified its employees, including the Applicant, informing them of its final decision on the policy and providing a final version of the policy (the Policy) to all employees, including the Applicant. The Policy required all employees to show proof that they were fully vaccinated against Covid-19 by close of business on 1 April 2022 (vaccination deadline).

On 9 March 2022, the Respondent, by SMS message, reminded its employees, including the Applicant, of the vaccination deadline.

On 18 March 2022, the Respondent provided a further reminder of the vaccination deadline to its employees in a newsletter.

On 29 March 2022, the Respondent wrote to the Applicant, noting that he was yet to provide evidence of his vaccination status, and requested that he do so by the vaccination deadline.

On 30 March 2022, the Applicant emailed the Respondent raising further objections to the Policy, asking whether he would be stood down (with or without pay) or have his employment terminated.

On 31 March 2022, the Respondent emailed the Applicant a response to his concerns raised in the Applicant’s email of 30 March 2022.

On 1 April 2022, the Respondent wrote to the Applicant and informed him that he had not provided evidence of his vaccination status.

On 5 April 2022, the Respondent wrote to the Applicant advising him that as it had not received evidence of his vaccination status it was assumed that he was not fully vaccinated and, if this was the case, his action constituted serious misconduct and may warrant termination of his employment. The Applicant was invited to a meeting the next day to show cause as to why his employment should not be terminated.

Also on 5 April 2022, the Applicant wrote to the Respondent, requesting that the Respondent’s Chief Executive Officer complete a statutory declaration which largely involved a questionnaire regarding Covid-19 vaccination matters.

On 6 April 2022, the Respondent wrote to the Applicant, encouraging him to ask questions of his doctor regarding matters to do with Covid-19 and vaccinations, and noting that the Applicant would be given the opportunity to explain the position he had taken regarding vaccination, noting that a potential outcome of his refusal to comply with the Policy may be the termination of his employment.

Also on 6 April 2022, the Applicant met with the Respondent to show cause why his employment should not be terminated.

On 11 April 2022, the Applicant’s employment was terminated for failing to comply with a lawful and reasonable direction to be vaccinated against Covid-19. The termination was communicated to the Applicant in a letter of the same date. The Applicant was provided with payment for accrued annual and long service leave and 5 weeks’ pay in lieu of notice.

On 27 April 2022, the Applicant filed the Form F2 Application for an Unfair Dismissal Remedy (Form F2), commencing these proceedings.

The Applicant claimed in the Form F2, that he was terminated for declining to participate in a “medical service = medical procedure = injection of a sch 4 poison Covid-19 Vaccination” and the transport industry and bus drivers were not subject to a Queensland government vaccination mandate. Further, that “claimed” mandates are offers of contract to participate in a task without remuneration and this offer was lawfully and righteously declined within the law”.[2] Further, the Respondent failed due diligence “by acting on hearsay claims and putting employees lives at substantial risk by coercing bullying with threat and menace to participate” in the vaccination scheme and further failed to provide evidence to the Applicant about the safety and legality of the vaccine and implementation of the Policy. The Applicant further raised issues in respect of the efficacy of the vaccine and contended that the request to provide his personal medical information was a breach of privacy. [3]

The matter was unable to be resolved through conciliation and directions were issued for the filing of materials by the parties, including submissions in relation to either party seeking permission to be legally represented, and for a statement of agreed facts to be produced prior to the hearing of the matter which was listed for 19 September 2022.

Permission to Appear

Prior to the hearing, to assist my consideration on whether permission ought to be granted for legal representation, the parties were directed to file written submissions addressing the criteria under s.596 of the Act if such leave were sought. The Applicant was not required to seek such permission as he was represented by his ‘friend’ Mr Alex Smith who is neither a lawyer nor a paid agent however he has represented a number of applicants in vaccination related matters before the Commission.[4]

The Respondent filed submissions seeking leave to be legally represented by Mr Hampson of Counsel and Piper Alderman pursuant to s.596(2)(a)-(c) of the Act. Given the volume of material filed by the Applicant, that the Applicant was assisted by Mr Smith, and the nuanced and complex legal arguments involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission to have the assistance of the Respondent’s legal representatives, which would enable to matter to be dealt with more efficiently. The Respondent’s representatives were granted leave to appear on 22 July 2022.

It should be noted that, at the time, the Applicant did not raise any objection to the Respondent being granted leave to be represented, however this was raised at the hearing and is addressed later in this decision.

Statement of Agreed Facts

Given the breadth of issues agitated by the Applicant, the parties attempted to identify the key issues to be determined by filing an agreed statement of facts. A draft statement of agreed facts was prepared by the Respondent and provided to the Applicant on 30 June 2022. On 2 and 4 August 2022, the Applicant filed its response to the draft agreed statement of facts. The Respondent filed its position on the agreed statement of facts on 5 August 2022.

To avoid repetition, the agreed facts are materially as per chronology set out in paragraphs [2] to [27] above.

Disputed Facts

The disputed facts which arose out of the process are set out in the following paragraphs.

The Respondent contends that a copy of the Policy was uploaded to the Respondent’s online platform and was accessible to all employees, including the Applicant, from 25 February 2022. The Applicant disputes this and submitted that he had not been able to access the online platform (Joey) for some time and never saw a copy of the Policy until 1 April 2022 when he was given a physical copy of the Policy. The Respondent does not agree that this sequence of events occurred and asserts that it was abundantly clear from the Applicant’s own correspondence of 30 March 2022 that he was fully aware of the nature and requirements of the Policy, given the objections he raised to the Policy in that correspondence.

In correspondence from the Respondent to the Applicant on 1 April 2022, the Respondent advised the Applicant that he had not provided evidence of his vaccination status and therefore was in breach of the Policy. The Applicant contests that he was in breach of the policy.

The Applicant asserts that he was effectively stood down without pay at the end of his shift on 1 April 2022. The Respondent’s position is that while it had made no decision regarding the termination of the Applicant’s employment until after the meeting of 6 April 2022, (with termination effective as of 11 April 2022), it did advise the Applicant on 1 April 2022 that as he had not provided evidence of his vaccination status and had not otherwise complied with the Policy, he would not be allocated anymore shifts.

In the Respondent’s correspondence to the Applicant of 6 April 2022, the Respondent noted that the Policy is completely lawful. The Applicant disagrees and asserts that “in terms of the legality and validity of the Respondent’s newly adopted policies, the State Direction [is] void ab initio thereby irrelevant [and] non applicable to National Systems Employees”.

In relation to the meeting held on 6 April 2022, in which the Applicant was invited to show cause as to why his employment should not be terminated, the Applicant disagreed with the characterisation that the Applicant’s termination would be a result of his “failure to follow a lawful direction of the Respondent, namely compliance with the Respondent’s Policy”. The Applicant contests the Respondent’s recollection of statements said to have been made by the Applicant at the meeting regarding the legality of the policy and lawfulness of the requirement for the Applicant to be vaccinated as no meeting minutes were recorded.

Applicant’s Material

The materials filed on behalf of the Applicant are hundreds of pages in length and appear to be substantially similar, if not the same, as those filed on behalf of other applicants who are assisted by Mr Smith in similar matters. In summary, the written submissions contain various assertions regarding:
(a)the lawfulness of Covid-19 vaccinations generally;
(b)the application of the Australian Constitution;
(c)allegations of jurisdictional misfeasance, nonfeasance and malfeasance by the Commission in refusing to “recognise the supremacy of the current Commonwealth-Constitution over all States’ and Territories’ Laws/Acts and Regulations, such as s5, s109, s51(xxiiiA) of the current Commonwealth-Constitution is established as prima facie”;
(d)an argument that there is some kind of “estoppel by silence” that applies because there is said to be “a prima facie case of biased considerations in favour of the Employer/Respondent by [the] FWC as a whole”; and
(e)an argument that the requirement to comply with the vaccination policy amounts to civil conscription and is illegal an unlawful having regard to the Commonwealth Constitution, The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited and Others[5] (Engineers Case) and Wong v Commonwealth of Australia (Wong)[6].

Noting that the Applicant’s submissions are verbose, the Applicant’s submissions in respect of the dismissal are summarised in the following paragraphs, largely using the Applicant’s own wording and formatting, however simplified where possible.

The Applicant submitted that the Respondent’s consent to participate in the mandate does not allow it to enforce the mandate upon its employees. Employees have a lawful and legal right to decline to participate in a “clinical trial of a provisionally approved claimed Covid-19 vaccination/medical procedure/injection of a Schedule 4 poison/medical service”.

The Applicant submitted that he was terminated on 11 April 2022 for failing to comply with a lawful and reasonable direction to be vaccinated against Covid-19. In respect of this, the Applicant submitted that he declined to follow the illegal and unlawful “claimed” Covid-19 vaccination mandate/health direction/health order/medical service/medical procedure/ instruction/instructions /rules/policies/mandates/direction(s) imposed by the Respondent on its staff because it amounts to civil conscription citing sections 51(xxiiiA) and 109 of the Commonwealth Constitution as well as the Engineers Case and Wong in support of this position.[7]

The Applicant further submitted that the Respondent failed the reasonableness test for unfair dismissal because their mandate was unlawful and illegal, nor is there any law permitting their actions.

In respect of s.385(b) of the Act: whether the dismissal was harsh, unjust, or unreasonable, the Applicant submitted that:

· The dismissal was harsh because he is facing adverse and detrimental economic impacts and defamatory consequences resulting from being maliciously, defamatorily, unethically, and unreasonably dismissed. He further submitted that the claim that the dismissal was lawful is vexatious and therefore ultra vires, void ab initio, and cadit quaestio.

· The Respondent willfully, deliberately, and maliciously placed the Applicant in an untenable position with the illegal and unlawful implementation of a new policy /direction requiring stealth participation in a 100% confirmed prima facie evidenced clinical trial of a claimed Covid-19 vaccination/medical procedure/medical service, that is contrary to any laws in this country, and a change in contract that was legally and lawfully declined.

· It was also impossible to fulfil due to the manner in which the policy/direction was implemented.

· The dismissal was unlawful, illegal, and harsh as no hearing in any jurisdiction had been held.

· The Applicant is accused of serious misconduct with no physical material evidence in law had been cited and there are laws that are contrary to the allegations of misconduct contained within s109 and s51(xxiiiA) of the Commonwealth-Constitution that provide protection from the Respondent’s misguided and belligerent policy directions and that any claims to the contrary are ultra vires, void ab initio, and cadit quaestio.

· The Respondent’s misguided, misconceived, and belligerent actions prevented the Applicant from carrying out their normal contractual obligations by making an unlawful and illegal demand upon the Applicant.

In respect of whether redeployment would have been reasonable, the Applicant submitted that:

· The Respondent failed the reasonableness test for unfair dismissal due to their misguided, belligerent, and complicit theorist actions, by mandating/directing policy that enforced stealth participation in a clinical trial claimed Covid-19 vaccination/ medical procedure/medical service, placing the Applicant at a documented and established risk of serious injury and death and that this action is in contravention of multiple laws and Acts as per the Commonwealth Constitution and relying upon the Engineers Case and Wong.

· The Respondent had fair and reasonable opportunity, and was put on notice multiple times, to research the validity and claimed lawfulness of the mandate/policy/direction, yet consistently failed to do so. The Applicant submits that ample evidence was submitted within the notices to the Respondent, giving the Respondent fair, reasonable, and equitable opportunity to ensure their actions were in the best interest of all employees, visitors, contractors and any variation thereof. No evidence, records, or risk assessment was provided or produced to suggest that the Respondent acted with due care and consideration in ensuring the Applicant was presented with fully analysed and independently reviewed medical and scientific evidence of the claimed safety and efficacy of the stealth participation of a clinical trial/medical service/claimed Covid-19 vaccine being demanded, with threat and menace of dismissal. The Applicant’s submission is that this is prima facie fact as the claimed Covid-19 vaccination was admitted to being the largest clinical trial, the largest global vaccination trial ever, by then Minister for Health and Aged Care, Greg Hunt, on 21 February 2021.

· The Respondent neglected to consider/make any reasonable adjustments and/or offer any alternative options to the Applicant. The consideration claimed by the Respondent that the Applicant’s lawful and legal right to decline their direction/policy is invalid, and is inadmissible as a fact, as their direction/policy is entirely untenable and unreasonable.

In respect of s.387(a): whether there was a valid reason(s) for the dismissal relating to the person’s capacity conduct (including its effect on the safety and welfare of other employees), the Applicant submitted that the dismissal was invalid in terms of capacity for, but not limited to, the following reasons:

· The Applicant was willing and able to continue to perform all inherent requirements of the position.

· The Respondent’s actions were ultra vires in enforcing the claimed State Government’s Directions upon its own employees to participate in clinical trial/claimed vaccination/medical procedure/injection of a schedule 4 poison/medical service, relying upon the Engineers Case and Wong. This was an unusual submission for the Applicant to make given this case did not involve a State Government Health Mandated Direction. This was repeated in other submissions by the Applicant that follow.

· In relation to enforcing participation in a clinical trial/an irreversible invasive medical procedure/injection of an unknown sch4 poison/medical service to remain employed, section 26 of the Fair Work Act excludes the Applicant, being a national systems employee within the meaning of section 13 of the Fair Work Act, from being required to comply with any State directions/ mandates/ rules/ policies/ instructions/ claimed laws. The legal definition of Mandate (16c) 4 Roman and Civil Law from Black’s Law Dictionary 11th edition is: “A written command given by a Principal to an agent; Specifically, a commission or contract by which one person (the mandator) requests someone (the mandatory) to perform some service gratuitously, the commission becoming effective when the mandatory agrees.” It is only mandatory if the Respondent agrees to the mandate. Therefore, any claim of lawfulness is ultra vires and void ab initio. Therefore, the inability through coercion to comply with the Direction/Policy/Instruction is lawful and reasonable.

· The Respondent acted upon its own volition, using wilful and deliberate actions, unlawfully enforcing the direction/policy, and had/has no legal obligation to enforce these being a national systems employer. Insisting that the Applicant must adhere to an illegal State direction/policy and prohibiting the Applicant from entry to the property/premises that prevented the Applicant from fulfilling and carrying out contractual duties/obligations under the Applicant’s current contract, suggests that the Respondent may be liable for all costs and financial losses. There is evidence that employers have been given financial or other incentives by the government to coerce/enforce illegal direction/policy upon employees to participate in the clinical trial. There is also evidence that the media have been given substantial financial renumeration for encouraging the narrative upon the public.

· Neither the Respondent nor the Applicant were legally required to comply with the direction/policy. The Respondent had erroneously classified/categorised the Applicant as a “worker” under the direction/policy, which in itself is not a law. The direction/policy also has/had no jurisdiction on a national systems employee who is not required to comply with unlawful and unreasonable State direction/policy that is coercive, manipulative and in direct contravention of the s109 and s51(xxiiiA) of the Commonwealth Constitution.

In respect of s.387(a): whether there was a valid reason(s) for the dismissal relating to the person’s conduct (including its effect on the safety and welfare of other employees), the Applicant submitted that the dismissal was invalid in terms of conduct, but not limited to, the following reasons:

· The Respondent falsely alleged and claimed that the Applicant did “not followed a reasonable and lawful direction” by the Applicant within the meaning of regulation 1.07 of the [Fair Work Regulations] which is found to constitute a valid reason for dismissal. The Applicant’s conduct does not amount to misconduct when the employer acted unlawfully by coercing and directing a policy to engage in a clinical trial/injection of a sch4 poison/medical service in order to maintain employment by means of site/property access. Therefore, the Applicant acted lawfully and reasonably by exercising free will right to decline to be coerced to participate in a clinical trial/medical service as per The Australian Immunisation Handbook and reinforced by s109 and s51(xxiiiA) of the Commonwealth Constitution.

· The Respondent failed to exercise its duty of care under the Work Health Safety Act 2011 (Cth) by subjecting the Applicant to serious risk of temporary and/or permanent injury or death by directing a policy enforcing participation with the claimed Covid-19 vaccination/clinical trial.

· The former Federal Minister for Health and Aged Care, Greg Hunt’s admission that, “The world is engaged in the largest clinical trial, the largest global vaccination trial ever, and we will have enormous amounts of data.” involving a medical service / irreversible invasive medical service / claimed Covid-19 vaccination (only provisionally and not fully approved by ATAGI), which is an experimental Schedule 4 Poison, and has the risk of serious adverse events/reactions, including death.

· The then Prime Minister, Scott Morrison, was adamant that all participation in the claimed Covid-19 vaccination was/is voluntary and anybody who chose to participate and has/had an adverse reaction is/was responsible for their own choice this applies more so as the participation is a clinical trial ATAGI and AHPRA have essentially gagged and threatened deregistration upon all medical professionals if their opinion is contrary to the Government.

· Medical practitioners are prevented from providing exemption for participation in the clinical trial claimed Covid-19 vaccination for fear of investigation and deregistration. All legally registered representatives have also been essentially gagged and prevented from challenging the current narrative. For example, Deputy President Lyndall Dean was banned from hearing vaccine-related cases and excluded from the Commission’s full bench until “she [completed] professional conduct training” as a consequence of speaking against the claimed Covid-19 vaccination narrative. This behaviour would fall in line with medical practitioners, legal representatives and government employees.[8]

· The Government acknowledges the potential risk of harm/injury/death arising from participation in the clinical trial claimed Covid-19 vaccinations that they have implemented a “Covid-19 vaccine claims scheme” under Services Australia to compensate victims for harm/injury, including paying funeral costs for death resulting from being injected with the provisionally approved for clinical trial use only claimed Covid-19 vaccination/Schedule 4 poison. How then is the Respondent claiming to act with due care and consideration in its workplace by imposing this unconstitutional direction/policy that, in addition to being unlawful, may cause serious harm/injury/death to the Applicant? This is especially outrageous when the Respondent is fully aware that the “Covid-19 vaccine claims scheme” exists and the risk of adverse events/reactions is real. The Applicant included a reference to a cardiac magnetic resonance imaging (MRI) for myocarditis associated with mRNA Covid-19 vaccination factsheet.

In respect of s.387(h): whether there are any other matters the FWC considers relevant, the Applicant submitted that:

· The Applicant relies upon the relevant authorities and decisions of the FWC and other Courts and Tribunals who have considered the legal principles including in particular the authorities named in the outline of submissions.

· Failure by the Respondent to inform the Applicant of the actual fact that it was/is a clinical trial and that no risk assessment was actually possible to be provided with any real validity hence the term clinical trial, instead the Respondent simply claiming it was approved safe and effective is gross civil and criminal negligence.

· The vaccines are a schedule 4 poison.

· The Respondent’s claim that it is required by law, without citing the specific law, to maintain vaccination status for a bus driver is false misrepresentation and is over-reaching of the contract of employment.

· Under section 52(ii) of the Commonwealth-Constitution, all people are exempt from participating in any clinical trial including this claimed Covid-19 vaccination/irreversible invasive medical procedure/medical service, as Mr Scott Morrison (former corporate Australian Government Prime Minister) clearly stated there are no mandates in place. As s51(xxiiiA) of Commonwealth Constitution prevents civil conscription of a medical service, all national systems employees, which includes the Applicant is/are exempt from coerced and forced participation in the claimed Covid-19 vaccination/medical service. This validates proof of claim that the State and Territory Governments and the Respondent are acting in direct violation of s.109 of the Commonwealth-Constitution.

· The Respondent states that it has an obligation to ensure, as far as is reasonably practicable, the health and safety of its employees and other persons attending its workplace. Any actions that contradict is by nature criminal negligence requiring participation in a clinical trial in the form of a medical service that creates harm and injury to the recipient and is impracticable as a requirement for employment or entry to property/premises, is illegal and unlawful and criminal. Any claims to the contra are ultra vires, void ab initio.

· Employers are breaching Work Health and Safety laws by placing employees at risk of serious harm due to adverse reaction and possible death by forced participation in a clinical trial/claimed Covid-19 vaccination/medical procedure/medical service.

· It is well established that mere participation in the clinical trial creates psychological and physical harm before, during and after participation irrespective of and apart from any adverse reactions suffered by employees/participants against their free will in order to continue the ability to earn a living. Work Health Safety Act 2011 (Cth).

In conclusion of its outline of submissions, the Applicant submitted the following:

· The Respondent’s actions were unlawful, illegal, and unreasonable, therefore deeming these acts as coercion with threat and menace, civil conscription, and economic pressure, as upheld by the High Court which is vitiated.

· The process by which the Respondent implemented these actions are deemed to be harassing, bullying, harsh, discriminatory, illegal and thereby making them ultra vires and void ab initio.

· Based on the prima facie material evidence, the Applicant’s dismissal was indeed harsh, unjust, and unreasonable and the Respondent has acted illegally, unlawfully, and criminally in implementing the direction/policy/ to participate in a clinical trial/medical service.

· The FWC is consistently biased and discriminatory towards all employees in many cases of this nature. This is emphasised as their false claims that they cannot determine the laws and also emphasised by any barrister/doctor that is deregistered/disbarred/re-trained for speaking or acting against the claimed Covid-19 vaccination narrative, for example: FWC Deputy President Lyndall Dean is a prime example of what occurs if speaking/acting against the narrative. She was clearly made an example of to discourage others from speaking out[9].

· The FWC are no longer acting in the best interest of the employee/employer or in the best interest of all people in/of the Commonwealth of Australia in general. It is no longer serving the purpose for which it was created: to uphold the [Corporations Act 2001 (Cth)] and [Fair Work Act 2009 (Cth)] and Work Health Safety Act 2011 (Cth). They are acting with conflicts of interest and in collusion with parties that stand to gain from the Covid-19 narrative. Examples include, but are not limited to, pharmaceutical companies and multi-national companies, such as Jetstar.

· No declined mandate can be legally enforced as it is an offer of contract that is/has been declined: s109 and s51(xxiiiA) of the Commonwealth Constitution.

In respect of the Applicant’s witness statement and associated annexures, which sets out a chronology of events encompassing the various exchanges of correspondence and meetings held between the Applicant and the Respondent from the introduction of the Respondent’s draft vaccination policy on 23 December 2021 through to the Applicant’s dismissal on 11 April 2022, I note that the Applicant provided the Respondent with several notices and further materials regarding the Applicant’s constitutional rights with respect to the Respondent’s vaccination policy and Covid-19/vaccinations generally during this period. The notices included a demand that the Respondent provide a response to the notice and that failure to do so would be accepted as tacit agreement that the Respondent’s vaccination policy and actions are unlawful and that they agree that they are “criminally and civilly guilty of the above stated crimes and can/will be held accountable to the full extent of the Australian law”. The Respondent declined to provide a response. The Applicant also requested that the Chief Executive Officer of the Respondent complete a statutory declaration which included a questionnaire about Covid-19 vaccination. The statutory declaration included the declaration that failure to answer the questionnaire truthfully would “result in penalty of perjury and fraud under Australian law” and that it was “a lawful and reasonable direction by order of the Australian people”. Further, failure to respond constituted “acceptance that all of the following: ‘direction’ / ‘policy’ / ‘mandate’ / ‘requirement’ / ‘public health order’ or any variation thereof are withdrawn effective immediately and acknowledgement of full criminal and civil liability to be held accountable to the full extent of Australian and International Law in any way, shape or form whatsoever.” The Respondent did not complete the statutory declaration. The Applicant has not provided any evidence in relation to whether he has sought to enforce or prosecute any of the notices, or the statutory declaration, as envisaged by those documents.

I find I must make reference to the fact that much of the argument put by Mr Smith of Decline in support of the Applicant appears to be a copy or substantial copy of templated material put before the Fair Work Commission in regard to similar matters without having regard to the individual facts of the matter, for example, in this matter in relation to the fact that the dismissal was not in relation to a public health mandate but rather in relation to failure to follow a lawful and reasonable direction.[10]

Respondent’s Material

I note the Respondent’s submissions made in respect of the Applicant’s attempts to discuss the jurisdiction of the Fair Work Commission, the Applicant’s submissions alleging “jurisdictional misfeasance, nonfeasance and malfeasance” by the Commission, and the relevance of the Applicant’s filed materials, among other matters:

“ 9.The Applicant's outline of submissions, in its first five paragraphs, attempts to discuss the jurisdiction of the Fair Work Commission ("Commission").

10.The relevance of the submissions is unclear in circumstances where it is the Applicant who has applied to the Commission for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth) ("FWA") and in circumstances where the Respondent does not assert that the Commission lacks jurisdiction to hear the application.

11.Insofar as paragraph 6 of the Applicant's Submissions asserts "jurisdictional misfeasance, nonfeasance and malfeasance" by the Commission:

11.1 The apparent assertion that follows, of apprehended bias (which the Respondent assumes is what is being asserted) lacks any proper foundation in fact.

11.2 The assertions are scandalous, insofar as they assume, without any evidence, actual misconduct of bad faith (or both) by the Commission in the hearing of the current case.

12.The Applicant presents a poorly expressed and somewhat incoherent argument as the "supremacy" of the Commonwealth Constitution (and presumably Commonwealth statutes more generally) over all statutes of the states (and regulations promulgated pursuant to them) and to the extent that the Applicant's argument is comprehensible at all, apparently seeks to argue that the statute law of any state (and presumably, in this case, Queensland) are not binding upon the Respondent.

13. If that is indeed the Applicant's position, it is incorrect as a matter of law.

14.The Respondent further states that it is completely incorrect in law to state,- as the Applicant does at paragraph 7 of his submissions - that the "only legally enforceable statutes on all parties are 'Commonwealth-Constitution Statutes' (whatever is meant by that inelegant term) - and that the only two applicable Statutes are the FWA and the Corporations Act 2001."

15.While the Respondent is faced with significant difficulty in responding to what must be characterised as the Applicant's incoherent submissions concerning "supremacy" of Commonwealth statutes to the extent that state laws would not apply at all to him or the Respondent concerning his employment, the Respondent submits that it is well-established law (in relation to the matters raised in this application and otherwise) that the Respondent was (and remains), bound by relevant Queensland statutes and Regulations except to the extent that such laws conflict with validly enacted Commonwealth laws and statutes that may apply to it concerning the same matters. This is the clear principle of "supremacy' arising from the Engineers Case.

16.It is also incorrect for the Applicant to submit - as he does at paragraph 19.1.1.2 of his submissions - that section 26 of the FWA excludes the Applicant from being required to comply with any state directions, mandates, rules, policies, instructions or laws relating to vaccine mandates.

17.That is apparent not only from the wording of section 26 of the FWA itself, but in section 27 of the FWA, which deals with state and territory laws not excluded by section 26 of the FWA.

18.Specifically, section 27(2) of the FWA provides that section 26 of the FWA does not apply to state laws dealing with "non-excluded matters" found in section 27(2), including matters of occupational health and safety.

19.Insofar as the balance of the Applicant's submissions are concerned, it is apparent that the Applicant does not wish to consent to having any Covid-19 vaccine in any circumstances.

20.The Applicant relies on a number of annexures to his submissions to support an argument that mandating Covid-19 vaccines in his workplace was "illegal and unlawful" (paragraph 17.1 of the Applicant's submissions), was a case of the Respondent acting "unlawfully by coercing and directing a policy to engage in a clinical trial" (paragraph 19.1.2.1 of the Applicant's submissions) and that the Respondent's actions were "unlawful, illegal and unreasonable", amounting to "coercion with threat and menace, civil conscription, and economic pressure" (paragraph 20 of the Applicant's submissions).

21.This leads to the Applicant's ultimate submission that his dismissal was harsh, unjust and unreasonable.

22.The Applicant is, of course, entitled to his own views on whether or not he wishes to be vaccinated.

23.However, that is a separate question from whether or not the Respondent has acted reasonably in adopting the Policy and whether, in terminating the Applicant's employment, it has acted in such a way that dismissal of the Applicant was harsh, unjust or unreasonable.

24.In making its ultimate determination as to whether there has been an unfair dismissal, the Respondent submits that much of the material annexed to the Applicant's submissions ought to be rejected entirely, as it does not constitute evidence, or at least evidence that ought to be given any weight by the Commission.

25.Annexures 4, 12, 15 and 16 to the Applicant's submissions are either website or news articles containing material concerning opinions or questions raised about Covid-19 vaccinations. They do not constitute evidence upon which this Commission can rely to determine questions regarding the Respondent's implementation of its Policy or the ultimate termination of the Applicant for his refusal to follow that Policy.

26.Annexure 31 to the Applicant's submissions, entitled "Vaccine Death Report" purports to be an article aiming only to "present scientific facts and stay away from unfounded claims" (a claim made on its opening page). The qualifications and expertise of the document's authors are unstated and unknown.

27.For a “report” stating that it only aims to present scientific facts, it relies on “facts” such as:

27.1 Facebook posts.

28.2An uncorroborated statement from a funeral director that in turn relies on hearsay.

28.3An uncorroborated and unproven assertion attributed to a person who asserts that the Spanish Flu was not real but caused by mass vaccinations.

27.2A statement attributed to the President of Chile that "5G technology will allow machines to read thoughts, insert thoughts, insert feelings".

27.3 Clearly judgmental references to the "deep church" and "deep state".

28.It is quite clear that such a document cannot constitute evidence upon which this Commission can rely.

29.Annexure 32 to the Applicant's submissions apparently constitutes the opinion of a University of Queensland employee (whose expertise in relation to the efficacy or safety of vaccines for human populations is not stated, nor apparent) and could not be safely relied upon as evidence in relation to the ultimate questions to be determined by this Commission.

30.The Respondent submits against that, that the Commission can have regard to the wellpublicised and published statements of record from representative authorities of both State and Federal governments, as well as the well-publicised statements of Queensland's Chief Health Officers regarding the safety and efficacy of Covid-19 vaccinations and the vaccination targets that were so publicly pursued by both state and Federal governments as the Covid-19 pandemic progressed.

31.The Respondent had certainly considered the advices of Qld Health regarding vaccinations, as well as the requirements of its clients to only supply bus transport using vaccinated drivers before formulating the Policy.

32.As publicly published statistics available through the Australian Government Department of Health and Aged Care showed on 18 August 2022, 95% of Australians aged 16 or over had received at least 2 doses of Covid-19 vaccines as at that date.

33.The Respondent submits that the Applicant hasn't provided any credible evidence - such as peer reviewed scientific literature, expert evidence, product warnings, government warnings or warnings from credible representative medical bodies (such as the Australian Medical Association) - that the Covid-19 vaccinations administered to that overwhelmingly large proportion of the Australian population have resulted in such a significant incidence of adverse health effects that the Respondent's decision to implement the Policy was in any way reckless or made with any lack of regard to the health and safety of its employees.

34.In particular, the Respondent submits that none of the material attached to the Applicant's submissions establishes that the number of adverse health outcomes to that overwhelmingly high proportion of Australia's population have outweighed the benefits of Covid-19 vaccination (as promoted by government health authorities in all Australian states and territories) such that mandating a Covid-19 vaccination policy in the workplace might be "misguided" or "misconceived and belligerent" (as asserted in paragraph 17.3 of the Applicant's submissions) or (as claimed in paragraph numbered 3, page 5 of the Applicant's Application) was "putting employees' lives at substantial risk" by mandating a Covid-19 vaccine that was "proven to be ineffective, deadly and with far greater contraindications and deaths than the claimed virus."

I am persuaded to agree with the Respondent’s submissions on these matters.

In respect of the matters for determination, the Respondent submitted there was a valid reason for the Applicant's dismissal relating to his conduct in refusing to comply with the Respondent's Policy. The Respondent submits that the Applicant’s conduct, in refusing to be vaccinated (without a legitimate reason, as stated in the Policy) had the potential to affect the safety and welfare of other employees, as well as customers of the Respondent, extending to the health and safety of the Applicant himself.

The Respondent submitted that the decision to terminate the Applicant's employment was sound, defensible or well-founded on the basis that he refused to comply with its Policy that it had reasonably brought into place to protect the health and safety of its employees and in part, to ensure the ongoing viability of its business (by ensuring its employees were fit to continue performing driving duties).

The Respondent further submitted that its reason for terminating the Applicant's employment was directly related to his conduct in him refusing to comply with the Policy, in the absence of a legitimate reason to do so and in circumstances where the terms of his employment contract clearly provided he was to follow all reasonable and lawful directions of the employer and to comply with the Respondent's occupational health and safety practices and procedures.

The Respondent submitted that its decision to dismiss the Applicant could certainly not be characterised as "capricious, fanciful, spiteful or prejudiced."[11] There is no evidence to support such a finding.

The Respondent submitted that the Applicant's dismissal on 11 April 2022 followed:
· The consideration of government recommendations, customer requests and the consideration of matters relevant to employee health and safety, before releasing the proposed Policy.
· The Respondent seeking and receiving employee feedback on that proposed Policy, which was first proposed to the Respondent's employees on 23 December 2021.
· Acceptance of that Policy by the vast majority of the Respondent's employees.
· A clear and unequivocal explanation of the consequences of failure to comply with the Policy given to the Applicant and all employees.

With respect to whether the direction was lawful and reasonable, the Respondent referred to recent decisions of the Fair Work Commission in Callender v MCI Southport Properties Pty Ltd [2022] FWC 164 and Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931. In introducing the Policy, the Respondent relied on published materials produced by Queensland Health, the Australian Government Department of Health and the World Health Organisation. The Respondent submitted that this material should be held in at least the same regard as ATAGI advice. The Respondent asserted that it is not only lawful and reasonable, but a legal requirement that employers in the position of the Respondent ensure the health and safety of employees and others. The Respondent, as a "person conducting a business or undertaking" for the purposes of both the Work Health and Safety Act 2011 (Qld)[12] is required to eliminate risks to health and safety so far as is reasonably practicable.[13] The Respondent submitted that it was under a duty to try and eliminate risks to the health and safety of employees. Therefore, the implementation of the Policy was a reasonable and lawful response to its statutory and common law duties of care, having regard to the well-publicised spread of the Covid-19 pandemic and legitimate concerns of the Respondent to protect the health and wellbeing of its employees and customers.

The Respondent submitted it is not relevant whether other employers (even other bus or transport companies) may not have implemented similar policies or, having faced the same circumstances, may not have dismissed the Applicant.

The Respondent asserted that the agreed facts clearly establish that the Applicant was notified not only of the reason for his dismissal, but, in advance of his dismissal, that he may be dismissed because of his failure to comply with the Policy. This is in circumstances where the Applicant's employment contract required him to comply with the Respondent's health and safety policies.

The Applicant was given several opportunities to respond to the Policy as it was proposed and was also afforded the opportunity to meet with the Respondent to discuss his anticipated dismissal for failure to follow the Policy on 6 April 2022. The Applicant was offered the opportunity to have a support person present to assist him at the meeting on 6 April 2022, as communicated to him on 5 April 2022. The Applicant was warned prior to his dismissal that his refusal to comply with the Policy may result in his employment being terminated. The size of the Respondent's enterprise had no impact on the procedures followed in effecting the Applicant's dismissal. The Respondent does not submit that it had an absence of any dedicated human resource management that impacted upon procedures followed in effecting the Applicant's dismissal.

The Respondent submitted that in addition to published and publicly available material (upon which the Commission can rely) concerning government mandated Covid-19 vaccinations (in workplaces such as aged care facilities and hospitals), the recommendations of Commonwealth, State and Territory Chief Health Officers (to be vaccinated), the recommendations on Covid-19 vaccinations made by ATAGl, the overwhelming uptake of Covid-19 vaccinations, and the lack of credible peer-reviewed evidence supporting assertions made by the Respondent as to the safety of the vaccines, lead to the conclusion that implementation of the Policy by the Respondent was reasonable given the following matters:

· The obligations of the Respondent under applicable health and safety legislation, towards not only its employees, but customers of its business (most notably, the Work Health and Safety Act (Qld) 2011)

· The customers of the Respondent's business to whom the Respondent owed obligations relating to their health and safety, such as ordinary members of the public, school students and (until 21 June 2022) persons who were being quarantined after entering Queensland in accordance with Queensland Government mandated Covid- 19 protocols.

· The exposure of the Respondent's employed bus drivers to members of the public including particularly vulnerable people such as the elderly, people with disabilities and young people.

· The average age of the Respondent's employed bus drivers (57 years), that some employees were immunocompromised and their potential vulnerability to infection and serious illness.

· The lack of alternative duties available in circumstances where the Applicant was employed as a full-time bus driver and there were no other duties the Respondent could offer him that would, having regard to his qualifications and experience, place him in a position where he could work in circumstances where he was not exposed to other employees of the Respondent's business or members of the public (such as working from home).

Hearing

At the hearing on 19 September 2022, the Applicant was supported by his unpaid friend, Mr Alex Smith and the Respondent was represented by Mr Guy Hampson of Counsel instructed by Mr Capelin of Piper Alderman.

At the hearing there was discussion about the role of Mr Alex Smith, given he was neither a paid agent nor a legal representative and therefore s.596 does not apply. I referred to the decision of Grabovsky[14] to provide guidance to the Applicant and Mr Smith in relation to Mr Smith’s role in the hearing, namely that Mr Smith could provide assistance to the Applicant in the capacity of a McKenzie friend. Mr Smith agreed with the characterisation of being a McKenzie friend initially however later debated this after I read the relevant excerpt from the aforementioned case.[15] I informed Mr Smith that I was happy to have him fulfil the role of a McKenzie friend having regard for the case law that I provided to him. I note that Mr Smith gave advice to Mr Edwards throughout the proceedings, as he could be heard doing so, and I also permitted a number of short adjournments for Mr Edwards and Mr Smith to move rooms so they could sit together and also to speak amongst themselves.

I should note that when we discussed the role of a McKenzie friend, Mr Smith requested that I should recuse myself from the hearing on the basis that he perceived that I was not being fair. I asked Mr Edwards to confirm whether he was requesting that I should recuse myself. Mr Edwards affirmed this and I provided him an opportunity to explain the reasoning why he considered that I should recuse myself from hearing the matter. There was nothing in his explanation that persuaded me to do so and I was satisfied that I could apply a fair mind to the matter and on that basis I declined to recuse myself.

Mr Edwards then requested that the hearing be adjourned to allow him more time to prepare himself. I explained that the matter had been listed for some weeks and there was plenty of time to prepare (I note that there was some 970 pages of material provided in the Hearing Book).

Mr Edwards also requested that I should withdraw my leave that the Respondent be legally represented. I explained that, in respect of the leave granted pursuant to s.596, the parties were given an opportunity to seek leave to be represented under s.596 including an opportunity to oppose or support the same. This had also occurred some weeks earlier and the Respondent had been granted that leave and therefore I declined to withdraw that leave.

Having settled these preliminary hurdles, the hearing proceeded, and Mr Edwards ran his case with the support of Mr Smith in the capacity of a McKenzie friend.

The Applicant gave evidence on his own behalf and Ms Laurell Wood, Payroll and HR Officer, gave evidence on behalf of the Respondent.

Mr Edward’s Evidence

Mr Edwards statement was largely uncontested. Mr Edwards conceded that whilst he claims he didn’t see the final vaccination policy of the Respondent on the 25^th of February, had he done so, it would not have changed his mind about becoming vaccinated. It is uncontested that Mr Edwards participated in the consultation process. Mr Edwards also conceded that at the meeting with the Respondent on the 6^th of April 2022, he indicated that it was not his intention to get vaccinated.

I permitted Mr Smith to conduct the re-examination of Mr Edwards to aid the proceedings however Mr Smith repeatedly attempted to bring in new matters that were not in issue in the cross examination by the Respondent. I note Mr Smith raised the issue of Mr Edward’s refusal to be vaccinated in re-examination, however the Respondent objected to the line of questioning, which I upheld, again on the basis that these were not matters raised by the Respondent in cross examination and I was further satisfied that Mr Edwards’ reasons for refusing the vaccination had been addressed in the significant amount of evidence and submissions filed.

Ms Wood’s Evidence

During Mr Edwards’ cross-examination of Ms Wood, I noted that Mr Smith often advised Mr Edwards what to ask and Mr Edwards did so. I noted this several times for the transcript and that I was supportive of such conduct to ensure Mr Edwards had the full opportunity to present his case. Ms Woods evidence was also uncontested however Mr Edwards did ask questions about the legal advice Ms Woods obtained (which she was unable to answer by reason of legal professional privilege), whether the vaccine was a clinical trial, and whether she thought the policy was forcing people to take part in an experimental/trial medical vaccine into their bodies. In my view these were not relevant to the questions to be decided and further, given Ms Woods conceded early in her cross-examination that she was not a doctor, I did not consider her opinion on these issues could be regarded with any great weight.

Consideration

Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was “protected from unfair dismissal” at the time of being dismissed; and the Applicant has been “unfairly dismissed”. Having regard to section 382 of the Act, it is not in contention, and I am satisfied, that the Applicant was protected from unfair dismissal and the application was made within time. The issue in contention is whether the Applicant was unfairly dismissed.

Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

In relation to the above criteria, the factor in s.385(a) was not disputed and the factors in s.385(c)-(d) were not applicable. I am therefore required to consider whether the dismissal was harsh, unjust or unreasonable.

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)whether the person was notified of that reason; and

(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)any other matters that the FWC considers relevant.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[16] I set out my consideration of each below.

(a) whether there was a valid reason for the dismissal

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[17] and should not be “capricious, fanciful, spiteful or prejudiced.”[18] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:

“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[19]

Whilst the Applicant disputed a number of minor elements of the consultation process (see preceding section on Background and Chronology), the bulk of the consultation process was not in dispute and given the annexures provided with the statement of Ms Wood I accept the evidence before the Commission that a number of avenues of consultation were used over a reasonable period of time and that in fact the Applicant availed himself of the opportunity to provide feedback and on that basis the direction of the employer was reasonable.

[81] It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act. These requirements outline that any proposed information to be collected from employees consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in a lawful and reasonable circumstances is dependent on the context in which it is invoked.

[82] There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full bench decision. In relation to the Privacy Act or bodily integrity any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.

[83] In relation to the present case, requesting an employee to provide their vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the applicant and is open for him to decline. The Full Bench noted that the choice lay with applicant and his decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondent’s direction that requires the collection of employee sensitive information, such as their vaccination status, does not impinge on the rights of an employee’s bodily integrity and is not an unlawful or unreasonable direction.

Further, the Applicant disputed the direction to comply with the Respondent’s policy was lawful. The Applicant alleged it was unlawful on the basis that the vaccine was not approved and that it was a clinical trial. He further alleged it was a breach of the immunisation handbook on the basis he was being coerced to have the vaccine against his will. A Presidential member of the Fair Work Commission has previously found that employers are not required to prove the safety of vaccinations that are approved for use in Australia by the Commonwealth.[20] Whilst this decision is not binding on me, I am heavily persuaded to agree with its conclusion.

I also note that Mr Edwards and his McKenzie friend Mr Smith raised a number of arguments in this case very similar to those raised before Deputy President Saunders in New Horizons.[21] I am of the view that the Deputy President’s decision at paragraphs [55] to [63] and in paragraphs [66] to [70] in respect of the Respondent’s vaccination policy are equally relevant and applicable in this case.

For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 1 April 2022 was a lawful and reasonable direction with which the Applicant was required to comply.

The Applicant made it clear that he was not vaccinated, nor did he have a medical exemption. During the meeting on 6 April 2022, the Applicant again confirmed that he was not vaccinated and did not intend to become vaccinated against Covid-19 at that time. In other words, he indicated that he would not be complying with the Respondent’s direction.

In light of that information from the Applicant, the Respondent could not provide him with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide him with any further shifts– constituted a valid reason for dismissal.

(b) and (c) whether the person was notified of that reason of that reason and had an opportunity to respond

Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[22]

Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if he was not vaccinated by 1 April 2022, his employment may be terminated.

The Applicant had – and took – the opportunity to respond on a couple of occasions to indicate his opposition to the introduction and enforcement of the mandate. This was done prior to 1 April 2022, and again after being provided with an opportunity to show cause sent in writing on 5 April 2022 and at a meeting on 6 April 2022, prior to his termination on 11 April 2022. Accordingly, I am satisfied that the Applicant was notified of the reason for his termination and had a sufficient opportunity to respond.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

The Applicant has not claimed that he was unreasonably refused a support person.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

Given the reasons for the Applicant’s termination, this factor is irrelevant.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

The Respondent is a medium sized employer with a dedicated human resources person. It undertook an adequate process to provide its staff with information about the introduction of the vaccination policy and consulted with its employees about its implementation and the outcomes for employees if they chose not to be vaccinated or provide evidence of a valid exemption. It consulted with the Applicant in respect of the policy, but it ultimately had very little control over what it could do if he chose not to be vaccinated.

(h) any other matters that the FWC considers relevant

While the transport industry was not subject to a government vaccination mandate, the Respondent identified that its bus drivers faced increased exposure to Covid-19 given that their bus drivers had regular contact with the general public, including school children and members of the vulnerable aged group, as a result of its normal operations and the risk was heightened by its appointment as the Queensland Government’s quarantine transport provider. Further, client requirements for the Charter arm of the business required that the Respondent’s employees be vaccinated.

I have regard to the fact that the Applicant had worked for the Respondent for an extensive period, and there were no allegations that he had been anything other than a dedicated employee. It must have been very upsetting to be told that his employment would end if he chose not to have a Covid-19 vaccination. However, it must also be noted that the Respondent’s policy was developed and adequately consulted with its employees and that the employer mindful of its health and safety obligations and in providing a service to the community at large determined that it was appropriate that they instigate a policy regarding Covid-19 vaccination. The employer gave a reasonable and lawful direction to the employee/Applicant which the Applicant chose not to follow (which the Applicant had every right to choose).

I cannot let Mr Smith’s conduct go without comment however. As in the case of Rocla, Deputy President Clancy’s conclusions as to Mr Smith’s conduct were equally applicable in this current matter. His attitude to the Commission was ‘belligerent’[23], he ‘advanced propositions that were plainly incorrect’[24] and the role he played was ‘reckless to the point of deleterious.’[25] I did not find the role he played aided the Commission given the knowledge he ought to have gained from his involvement in so many similar matters before the Commission of which he seemed to dismiss on the basis of his personal strongly held and often plainly erroneous views rather than to act solely in the interest of the Applicant and based on the Applicant’s actual circumstances in this matter.

Conclusion

Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with a fair process. I find that the Applicant was not unfairly dismissed in accordance with the Act.

I therefore order that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

Appearances:

T Edwards, Applicant and A Smith, Friend of the Applicant

G Hampson of Counsel instructed by T Capelin of Piper Alderman, for the Respondent

Hearing details:

2022
Brisbane (by video using Microsoft Teams)
September 19.

[1] Form F3 – Employer response to unfair dismissal application filed 12 May 2022 (Form F3), 3.2.

[2] Applicant’s Form F2 filed 27 April 2022 (Form F2), 3.2.

[3] Form F2, 3.2.

[4] Nigel Stock v Rocla Ltd[2022] FWC 2597 [35] and [37] (Rocla).

[5] [1920] 28 CLR 129.

[6] [2009] HCA 3.

[7] Applicant submissions filed 11 July 2022, para 15.

[8] Hearing Book Pages 59-60.

[9] Hearing Book Page 63.

[10] Ibid [33], [35] and [37].

[11] See Selvachandran (1995) 62 IR 371 at [373].

[12] Work Health and Safety Act 2011 (Qld) s 5.

[13] See s 17 of the Work Health and Safety Act 2011 (Qld) and s 17 of the Work Health and Safety Act 2011 (Cth).

[14] Inna Grabovsky v United Protestant Association NSW Ltd T/A UPA[2019] FWCFB 8605 [53]-[55].

[15] McKenzie v McKenzie [1970] 3 All E.R. 1034.

[16] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[17] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[18] Ibid.

[19] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].

[20] Eileen Owens v I-Med Radiology Ltd[2022] FWC 1823 (12 July 2022) [46] Point 9.

[21] Elizabeth Cogger v New Horizons Enterprises Limited[2022] FWC 1267 [55]-[63].

[22] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[23] Rocla [36].

[24] Ibid.

[25] Ibid [38].

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