Toki v All Class Training Pty Ltd - [2024] FedCFamC2G 566

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566

File number(s): SYG 1964 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 25 June 2024

Catchwords: INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed.

Legislation:
Fair Work Act 2009 (Cth) ss 12, 340(1), 341, 342(1), 351, 386(1), 550(2), 793(1)

Workplace Relations Act 1996 (Cth) s 298K(1)

Public Health Act 2010 (NSW) s 7

Work Health and Safety Act 2011 (NSW) s 12, Pt 5, Div 2

Cases cited:
Alam v National Australia Bank Limited [2021] FCAFC 178

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Childs v Metropolitan Transport Trust [1981] FCA 200

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260

Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Division: Fair Work

Number of paragraphs: 130

Date of last submission/s: 22 December 2022

Date of hearing: 14 and 15 November 2022

Place: Sydney

Counsel for the Applicant: Mr S Mueller

Solicitor for the Applicant: Roberts Legal

Counsel for the Respondents: Mr M Baroni

Solicitor for the Respondents: Osborn Law
ORDERS

SYG 1964 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FINISI TOKI

Applicant

AND:
ALL CLASS TRAINING PTY LIMITED ACN 143 355 604

First Respondent

ANTHONY MEARRICK

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant, Mr Toki, claims that the first respondent (ACTPL) contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him from his employment, and taking other adverse action against him, because Mr Toki was entitled to, and exercised a number of workplace rights, including the workplace rights provided for in s 341(1)(c)(ii) of the FW Act. Mr Toki also claims that ACTPL took the adverse action against Mr Toki because he had a physical disability – severe obstructive sleep apnoea and nasal obstruction – and, for that reason, ACTPL contravened s 351 of the FW Act. Mr Toki further claims that the second respondent, Mr Mearrick, who is the sole director of ACTPL, was a person involved, within the meaning of s 550(2) of the FW Act, in ACTPL’s contraventions of s 340(1) and s 351 of the FW Act.
ACTPL accepts that it terminated Mr Toki’s employment. It denies, however, that Mr Toki exercised any workplace rights within the meaning of s 341 of the FW Act, or, if Mr Toki did hold or exercise any such workplace rights, ACTPL denies it terminated Mr Toki’s employment because Mr Toki held or exercised any workplace rights, or because he may have had a disability. ACTPL contends that it terminated Mr Toki’s employment because he breached public health orders while on ACTPL’s premises.
EVIDENCE AND SOME FINDINGS
ACTPL’s business
ACTPL is a registered training organisation based in Newcastle and the Hunter Valley area; and it is a preferred supplier of training and assessment services in New South Wales.[1] It conducts a number of courses. These include forklift training, EWP (elevated work platform) training, “dogging”, and rigging.[2] Mr Mearrick established the business as a sole trader in 2009, and ACTPL took over the business in 2010. Mr Mearrick (as I have already noted) is the sole director of ACTPL.
[1] Affidavit A Mearrick 29.04.2022, [3]
[2] Affidavit A Mearrick 29.04.2022, [6]
ACTPL conducts its courses at its site in Tomago, and on the sites of clients. The Tomago site has heavy equipment that is used for on-site practical training. The equipment includes elevated platforms, a confined space training unit, cranes, and forklifts. The training involves students using the machines. Most communication occurs indoors in training rooms where course participants perform the theory component of the relevant course. There is no great need for communication with course participants during practical exercises. Most of the instructor’s activities are devoted to supervising and observing. [3]
[3] Affidavit A Mearrick 29.04.2022, [7]
23 July 2020 – ACTPL approves COVID-19 action plan
Through ACTPL’s membership of Employsure, Mr Mearrick received regular updates about the appropriate responses businesses should take to comply with public health orders issued in relation to the COVID-19 outbreak.[4] On 23 July 2020 Mr Mearrick approved an action plan which set out ACTPL’s actions in response to COVID-19.[5]
[4] Affidavit A Mearrick 29.04.2022, [18]
[5] Affidavit A Mearrick 29.04.2022, [19], exhibit AM-1, pages 20-21
13 August 2020 – Mr Toki commences employment with ACTPL
On or about 13 August 2020 Mr Toki commenced employment with ACTPL as a “Trainer in Training”. He did so under the terms of a written contract of employment.[6] Before he commenced his employment Mr Toki completed a form titled “Health Questionnaire”. That document asked a number of questions which required either a “no” or a “yes” answer with additional information. The form identified a number of specific conditions and asked whether the person had any of them. Mr Toki answered “no” to each of these questions.
[6] Affidavit F Toki 25.03.2022, [7]; exhibit FT-1, pages 11-22
The form then asked more general questions, to which Mr Toki also answered “no”. The questions included the following:
Have you ever had
Any other accident, operation or illness?
. . . .
Any other current or recent medical condition or treatment which might affect your attendance or performance at work?
According to Mr Toki, a report dated 5 February 2020 from the John Hunter Hospital confirmed he had severe sleep apnoea;[7] and in early 2020 he was prescribed therapy for his sleep apnoea which consisted of the use of a continuous positive airway machine.[8]
[7] Affidavit F Toki 25.03.2022, [11]. Mr Toki has not adduced into evidence the report; and this part of his evidence was admitted for a non-hearsay purpose.
[8] Affidavit F Toki 25.03.2022, [12]
Mr Toki says he wore a mask at work during the first two to three weeks of his employment with ACTPL “in accordance with directions from the First Respondent”. Mr Toki says he did this due to his being a new employee; he wanted to create minimal disturbance to ACTPL’s business; and in any event, he was on his probationary period.[9] Mr Toki also says that, while wearing the face mask, he experienced increased difficulty breathing, which caused uncontrollable sweats, and nausea; and to offset these symptoms, Mr Toki “would need to frequently step outside from” his teaching duties to remove his face mask to allow adequate airflow.[10]
[9] Affidavit F Toki 25.03.2022, [17]
[10] Affidavit F Toki 25.03.2022, [18]
Also according to Mr Toki, in around September 2020 he was “confronted” by Mr Jon Baker when he asked Mr Toki why he was not wearing his mask correctly. Mr Toki said he had “issues with the comfort of the mask”.[11] Mr Toki says he did not “reference” his “underlying medical conditions” because he was a new employee during his probationary period, and he did not want to create any issue that may lead to the termination of his employment.[12]
[11] Affidavit F Toki 25.03.2022, [20]
[12] Affidavit F Toki 25.03.2022, [21]
Public Health Order as at 5 August 2021
On 26 June 2021, pursuant to s 7 of the Public Health Act 2010 (NSW), the New South Wales Minister for Health and Medical Research made the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW) (PH Order). The PH Order was regularly amended; and, as at 5 August 2021, cl 17(1) required that a person wear “a fitted face covering over both the person’s nose and mouth at all times while the person” was
(a) in any indoor area or non-residential premises, and
. . . .
(h)in an outdoor area in a local government area to which Part IVA, Division 2 applies, unless the outdoor area forms part of residential premises.
Paragraph (b) of cl 17(2) exempted from the operation of cl 17(1):
a person with a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable, including, for example, a skin condition, an intellectual disability, autism or trauma.
Subclause 17(2A) provided that:
a person relying on subclause (2)(b) must—
(a) carry—
(i) relevant evidence that the person has the physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable, and
(ii)evidence of the person’s name and the address of the person’s place of residence, and
(b) produce the relevant evidence for inspection by, and give a copy of the relevant evidence to, a police officer if requested to do so by the police officer, and
(c) produce the evidence of the person’s name and the address of the person’s place of residence to a police officer for inspection if requested to do so by the police officer.
Subclause 17(3) of the PH Order specified circumstances in which a person who is required to wear a fitted face covering may remove a fitted face covering.
Order 8 of the PH Order may also be relevant:
The Minister directs that an employer must allow an employee to work at the employee’s place of residence if it is reasonably practicable to do so.
July 2021 – conversations with Ms Mearrick and with Mr Atherton
According to Mr Toki, in July 2021, while he was in ACTPL’s administration office, he had the following conversation with Ms Mearrick, ACTPL’s administration manager:[13]
Ms Mearrick:    Why is no one wearing masks next door?
Mr Toki: Personally, I am not sure. It is not something I am personally comfortable with and feel it should be addressed by medical people.
Ms Mearrick:   That is understandable. It is a matter for the students and we cannot force them. We are thinking of doing tests on people outside the local government area.
Mr Toki:I am not comfortable with doing that as I don’t have a medical background.
Ms Mearrick:   If we require it then the Trainers will need to enforce it.
[13] Affidavit F Toki 25.03.2022, [24]
Mr Toki further says that, also in July 2021, he had a conversation with Mr Atherton, ACTPL’s operations manager, as follows:[14]
Mr Atherton: I think we are exempt from, wearing masks due to the fact we are in high risk work environments and communication is key.
Mr Toki: I agree, when will this happen?
Mr Atherton: It is already in effect, that is why trainers are not wearing them.
[14] Affidavit F Toki 25.03.2022, [25]
Mr Toki says that, following this conversation, and “knowing my underlying condition”, he scheduled an appointment with his usual general practitioner on 9 August 2021, but, in the meantime, he made arrangements to have a statutory declaration made “in relation to my underlying health issues”.[15]
[15] Affidavit F Toki 25.03.2022, [26]
Mr Toki was cross-examined about this part of his evidence. He accepted that, “perhaps”, he had the conversations with Mr Mearrick and Mr Atherton in early July 2021, and said that 9 August 2021 was the next available appointment to see his general practitioner.[16] It was put to Mr Toki, however, that he made an appointment to see his general practitioner after his meeting with Mr and Ms Mearrick on 9 August 2021, to which I refer to later in these reasons.[17]
[16] T51.40
[17] T64.5
It is unclear from Mr Toki’s evidence for what purpose he says in July 2021 he scheduled an appointment with his general practitioner (GP) on 9 August 2021. Mr Toki, however, does not say that he had scheduled his appointment for the purpose of obtaining a medical certificate that would support his being exempt from any legal requirement that he wear a face mask; and I find it is unlikely that he scheduled an appointment with his GP for that purpose. I so find because, as will appear later, Mr Toki made a statutory declaration on 7 August 2021 without having obtained any certificate from his GP; and, as will also appear later, he relied on that statutory declaration at the meeting of 9 August 2021 to support a contention he advanced at the meeting that he was exempt from wearing a face mask. Further, had Mr Toki before 6 August 2021 made an appointment to see his GP on 9 August 2021 for the purpose of obtaining a certificate that would support an exemption from wearing a mask, it is reasonable to expect that Mr Toki would have communicated that fact to Mr Mearrick before or at the meeting of 9 August 2021, something which he does not claim he did.
I also find it is unlikely that, before 6 August 2021, Mr Toki arranged to obtain a statutory declaration in relation his underlying health issues. On his own evidence (which I set out below), Mr Toki says that on 6 August 2021, after Mr Mearrick informed him that face masks had to be worn outside, Mr Toki said “I can get a state dec or exemption”. That suggests that Mr Toki had not before 6 August 2021 made or had commenced making arrangements to obtain a statutory declaration to support a claim that he was exempt from wearing a face mask.
Mr Atherton made an affidavit responding to Mr Toki’s affidavit. It is unnecessary to set out what he said because nothing turns on my accepting or not accepting Mr Atherton’s evidence.
6 August 2021 – Mr Mearrick informs Mr Toki of requirement to wear mask outside
On 6 August 2021 Mr Mearrick had a conversation with Mr Toki under the awning at the front of the training centre during which Mr Mearrick informed Mr Toki that face masks had to be worn outside, and in which Mr Toki said he could get a statutory declaration. Mr Mearrick’s and Mr Toki’s accounts of the conversation differ to some extent.
Mr Mearrick’s account
According to Mr Mearrick, he and Mr Toki had a conversation as follows:[18]
Mr Mearrick:    Masks are now required to be worn outside for everyone.
Mr Toki:         Don’t start me, I could talk all day about masks.
Mr Mearrick:    It’s changed, we have to wear them outside as well.
Mr Toki:         I can get a stat dec.
[18] Affidavit A Mearrick 29.04.2022, [28]
Mr Mearrick says that he continued to hold discussions with other employees of ACTPL, many of whom were also not wearing masks, and reminded them of the updated PH Order, and the need “to now wear masks outside”.[19]
[19] Affidavit A Mearrick 29.04.2022, [28]
Mr Toki’s account
Mr Toki’s account of the conversation is as follows:[20]
Mr Mearrick:   It is now necessary for everyone to be wearing a mask. The rules have changed, and I need you to put a mask on.
Mr Toki:Aren’t we exempt?
Mr Mearrick:   Not any more.
Mr Toki:I have a medical issue; I can get a stat dec or an exemption. Would you like to see it?
Mr Mearrick:   No, but I will be asking you to leave shortly.
[20] Affidavit F Toki 25.03.2022, [28].
Mr Mearrick does not in his affidavit address this part of Mr Toki’s affidavit; and although Mr Toki in his second affidavit refers to Mr Mearrick’s account of his conversation, he only says that he denies he said: “Don’t start me, I could talk all day about masks”.
Findings
I find what is common to the accounts Mr Toki and Mr Mearrick give in their affidavits, namely, that on 6 August 2021 Mr Mearrick informed Mr Toki that everyone was required to wear face masks, and that Mr Toki said he could get a statutory declaration. I also find that Mr Toki and Mr Mearrick discussed exemptions. I so find because Mr Toki and Mr Mearrick both recall that Mr Toki said he can get a statutory declaration; and getting a statutory declaration could only reasonably have been relevant to Mr Toki’s claiming that he fell within an exemption from the PH Order requirement that masks be worn. I am not satisfied that Mr Toki asked Mr Mearrick whether Mr Mearrick wanted to see a statutory declaration about Mr Toki’s health, and that Mr Mearrick responded with “no”. As appears in the following paragraph, on 6 August 2021 Ms Mearrick, on the instructions of Mr Mearrick, sent an email to ACTPL’s employees, including to Mr Toki, which referred to the need to provide either medical evidence or a statutory declaration if an employee were to claim he or she was exempt from the requirement to wear a face mask.
Mr and Ms Mearrick send email to staff
At 11:08 am on 6 August 2021 Ms Mearrick at the request of Mr Mearrick, sent the following email to ACTPL staff:[21]
[21] Affidavit A Mearrick 29.04.2022, [29]; exhibit AM-1, pages 94-96
Can you please read the below and reply to inform us if you will be complying with wearing a face mask or will have an exemption in place or wish to be stood down.
As per government advice from 5pm 05/08/2021 our area is in lockdown and face masks must be worn both inside and outdoors while at work. The general reasons to not wear a face mask are while you are eating and drinking or while you are communicating with others if the mask is making communication difficult. Please read the information in the web page from the link below. Please read it in full and carefully. If you don’t understand it please call Anthony and he will go through it with you.
https :// .au/ covid-19/ru les/ changes/face-mask-rules
The below is copied from the above web page under “lawful reasons for not wearing a mask”,
“You are not required to wear a mask if you have a physical or mental health illness or condition, or disability, that makes wearing a mask unsuitable. For example, if you have a skin condition, an intellectual disability, autism or trauma, you are not required to wear a mask.”
Under the section "proof of exemption for not wearing a mask" the following is stated,
“If you cannot wear a face mask because of a disability, physical or mental health illness or condition, you must carry either
•a medical certificate or letter signed by a registered health practitioner (such as a doctor) or a registered NDIS provider or
•a statutory declaration.
If you are claiming an exemption as mentioned above you will need to provide us a copy of your
medical certificate or statutory declaration before 6pm on Sunday 8th August to this email address. You will also need to ensure you carry a copy of the exemption with you at all times while at work.
If you choose not to wear a face mask for any reason not stated on the web page or public health orders (PHO) you will be stood down without pay while current PHO’s apply.
We ask that you respond to us as soon as possible in case we become short staffed and need to cancel courses. We would like to be able to give our students as much notice as possible.
Thanks for your assistance.
Regards
Anthony & Melissa Mearrick

Ms Mearrick was the office administration manager,[22] and she sent the email after she and Mr Mearrick had conferred.[23]
[22] 15.11.2022 T50.35
[23] Affidavit A Mearrick 29.04.2022, [29]
Mr Toki received the email. In his affidavit, Mr Toki says that the email and the link referred to in the email did not give the “details” Mr Toki “required”; and that is because the email simply stated Mr Toki needed a medical exemption signed by a registered health practitioner, or a statutory declaration signed by a JP.[24] In evidence he gave under cross-examination, however, Mr Toki said he did not read the email until Sunday 8 August 2021;[25] by that time he had made the statutory declaration dated 7 August 2021 to which I refer below;[26] and he could not remember whether he clicked on the link contained in Ms Mearrick’s email of 6 August 2021.[27] Nothing turns on Mr Toki having given inconsistent evidence about whether he clicked the link referred to in Ms Mearrick’s email of 6 August 2021.
[24] Affidavit F Toki 25.03.2022, [30]; Affidavit F Toki 13.05.2022, [16]
[25] T66.20
[26] T65.35
[27] T67.25
Mr Toki responded to Ms Mearrick’s email of 6 August 2021 with the following email he sent at 10:01 am on 8 August 2021:[28]
I have a statutory declaration signed. It will be on me at all times while at work. However, I will not be providing a copy but you are free to sight it.
[28] Affidavit F Toki 25.03.2022, [30]; exhibit FT-2 pages 23; Affidavit A Mearrick 29.04.2022, [29]; exhibit AM-1, pages 94-96
I find that the statutory declaration to which Mr Toki referred in his email is the statutory declaration Mr Toki made on 7 August 2021 (7 August statutory declaration), which is as follows:[29]
[29] Affidavit A Mearrick 29.04.2022, [36]; exhibit AM-1, page 100
I Finisi Toki, do solemnly and sincerely declare that:
•1. I am exempt from wearing a mask due to physical/health-related issues
•2. I am exempt from partaking in an experimental vaccine/medical procedure.
•3. As per the Privacy Act 1988, I have a right to privacy and am not obliged to provide anyone with my health details.
•4. I cannot disclose to anyone my private health status for fear of discriminatory retaliation
•5. The Nuremberg codes, the International Covenant on Civil and Political Rights are international protections for the rights of men and women.
•6. The Constitution of the Commonwealth of Australia 1901, and in particular section 51xxiii(a) of the updated version, ensures my right not to be forced into a medical procedure of any kind.
•7. I am not suffering any illness that requires me to wear a mask or enrol in a medical experiment.
•8. I have not received a public health order according to the Public health Act New South Wales which states, under section 62(2), a public health order may include my name, the illness I am suffering and the duration of the public health order.:
Mr and Ms Mearrick responded to Mr Toki’s email of 8 August 2021 with the following email, which they sent at 12:11 pm on 8 August 2021:
Hi Finisi
Thank you for replying and advising that you have a statutory declaration to exempt you from wearing a mask.
Please be at work at 6.30 am tomorrow.
Please don’t park in or enter the training centre premises.
Please wait in the office car park and we will get you to see us individually to view your stat dec and discuss your exemption.
Kind regards
Anthony & Melissa Mearrick
9 August 2021 – Mr and Ms Mearrick meet with Mr Toki
At around 6:30 am on 9 August 2021 Mr and Ms Mearrick met with Mr Toki and two other employees of ACTPL, Mr Cooper, and Mr Tull.
Mr Toki’s account – first affidavit
The following is the account Mr Toki gave in his first affidavit:
(a)Mr Toki arrived at work at 6:30 am. He met Mr and Ms Mearrick outside the office area near the main facility where a fellow colleague’s statutory declaration was being examined. Mr Toki opted to have a support person, Mr Tull, to be present while Mr Toki’s statutory declaration was examined.[30]
[30] Affidavit F Toki 25.03.2022, [31]
(b)During the meeting Mr Toki handed over his statutory declaration after which the following conversation occurred.[31]
[31] Affidavit F Toki 25.03.2022, [32]
Mr Mearrick:    This isn’t acceptable.
Mr Toki:        Why?
Mr Mearrick:    It doesn’t have a real reason why you are exempt.
Mr Toki:        Yes, it does, it states that I suffer from a medical condition.
Mr Mearrick:    It does not state a specific condition. Yours and your brothers are not valid.
Mr Toki: I am embarrassed about my medical condition and feel it is an issue for me and my doctor. What gives you the right to judge my condition?
Mr Mearrick:    Because I am your employer.
Mr Toki:I don’t feel that is acceptable.
Mr Mearrick:    You will be stood down with pay due to not having an appropriate statutory declaration.
Mr Toki:If the statutory declaration isn’t right, I do genuinely suffer a condition and can provide you an exemption.
Mr Mearrick:    I will still be standing you down. I can’t have you and your brother walking around without a mask on because it is not a good look.
Mr Toki:I just don’t understand why you can make a decision on my statutory declaration.
Mr Mearrick:    If you do not agree I will call the police.
Mr Toki:I just want clarification, not an argument.
Mr Mearrick:    Leave the premises.
After this conversation, Ms Mearrick handed Mr Toki a phone, at which time she said: “Here is a police officer, I want you to speak to Her”. Mr Toki said he had no way of knowing who this person was and whether he or she was a police officer. Mr Toki said he had the following conversation with a person he understood to be a police officer.[32]
Police:What is the problem?
Mr Toki:I do not have a problem; I am ready to work but my employer says that I can't.
Police:It is necessary to provide a medical reason.
Mr Toki:I am conscious of my medical history and I find it embarrassing.
Police:If there is a further issue, I will send officers to site.
Mr Toki:There is no issue, can I stay for a support meeting and then I will go?
Police:That is fine
[32] Affidavit F Toki 25.03.2022, [33]
Mr Mearrick’s account
The following is the account Mr Mearrick gave in his affidavit:[33]
[33] Affidavit A Mearrick 29.04.2022, [34]-[39]
(a)Mr Mearrick asked Mr Toki whether he had his “stat dec” and whether he could “have a look”.
(b)Mr Mearrick had brought with him what he describes as a “pro forma checklist” which he had prepared “with the assistance of Employsure”. Mr Mearrick completed the checklist to identify whether the statutory declaration Mr Toki had shown “complied with the requirements of the public health order”. The following conversation then occurred:
Mr Mearrick:    This stat dec does not comply. It doesn’t name the condition.
Mr Toki:It doesn’t have to state the reason because of privacy. I am entitled to my privacy.
Mr Mearrick:    No, it is not valid. It needs to state the condition and it doesn’t.
(c)Mr Mearrick handed to Mr Toki a copy of a document titled “Proof of exemption and identity”, which Mr Mearrick says he obtained from the “NSW Health website”. The document is as follows:[34]
[34] Affidavit A Mearrick 29.04.2022, [37]; exhibit AM-1, page 99
Proof of exemption and identity
If you are in a situation where masks are mandatory, a police officer can ask you to confirm the lawful reason you are not wearing a face mask.
If asked by a police officer, you must show them either
•A medical certificate or letter from the health practitioner or NDIS provider or
•A statutory declaration.
You must also carry and produce evidence of your name and address to a police officer if requested.
A statutory declaration will require you to identify your disability, physical or mental illness or condition and declare:
•you have the physical or mental health illness or condition or disability and
•the physical or mental health illness or condition or disability makes wearing a fitted covering unsuitable
(d)When Mr Mearrick handed this document to Mr Toki, the following conversation occurred:
Mr Mearrick:    It doesn’t identify what your illness or health condition is
Mr Toki:It doesn’t have to say it. That is my private information.
Ms Mearrick:    I can call the police then.
(e)In the presence of Mr Toki and Mr Mearrick, Ms Mearrick telephoned the Raymond Terrace police station and spoke the following words to the telephone:
We have five out of our six staff not wearing masks. I have a stat dec but the stat dec doesn’t have a reason. It doesn’t specify his illness or condition as required. Therefore, it's not valid, but he is not accepting it's not valid.
(f)Ms Mearrick handed the telephone to Mr Toki, who walked away while he was on the mobile telephone. Mr Toki returned the phone to Mr Mearrick, and then went to his car.
Further evidence given by Mr Toki
In his second affidavit, Mr Toki denies Mr Mearrick handed to him the document headed “Proof of exemption and identity”;[35] and Mr Toki says he was not present when Ms Mearrick phoned the police.[36] In evidence given under cross-examination, Mr Toki said he informed Mr and Ms Mearrick that he had a doctor’s appointment,[37] and that he told them he could get a medical exemption.[38]
[35] Affidavit F Toki 13.05.2022, [20]
[36] Affidavit F Toki 13.05.2022, [21]
[37] T64.30
[38] T64.30
Evidence Mr Mearrick gave under cross-examination
In evidence given under cross-examination, Mr Mearrick accepted Mr Toki said he was embarrassed about his medical condition;[39] that Mr Toki said he felt that was an issue between him and his doctor;[40] Mr Toki asked what gave Mr Mearrick the right to judge Mr Toki’s condition, in response to which Mr Mearrick said he was Mr Toki’s employer;[41] Mr Toki said he did not feel that was acceptable;[42] Mr Mearrick told Mr Toki that he will be stood down with pay due to not having an appropriate statutory declaration;[43] Mr Toki said he could not understand why Mr Mearrick could make a decision on his statutory declaration;[44] Mr Mearrick said that if Mr Toki did not agree, he would call the police;[45] Ms Mearrick then called the police, although not at Mr Mearrick’s request;[46] Ms Mearrick told the police that “we have five out of our six staff not wearing masks”;[47] Ms Mearrick further said to the police that she had a “stat dec, but the stat dec doesn’t have a reason”, therefore the statutory declaration is not valid but “[h]e’s not accepting it’s not valid”;[48] at some point Mr Mearrick told Mr Toki to leave the premises;[49] Mr Mearrick told Mr Toki that he would call the police if Mr Toki did not agree because he wanted the police to be there as a body that decides whether the statutory declaration was valid.[50]
[39] T173.35
[40] T173.40
[41] T173.40
[42] T173.45
[43] T174.5
[44] T174.25
[45] T174.30
[46] T174.40
[47] T174.45
[48] T175.5
[49] T175.45
[50] T175.35
Mr Mearrick did not accept that Mr Toki said to him that if “the statutory [declaration] isn’t right, I do genuinely suffer a condition and can provide you an exemption”;[51] or that Mr Mearrick told Mr Toki that he had an issue with people not wearing masks in his training company.[52]
[51] T174.10
[52] T174.20
Findings
Although there is some conflict in the accounts Mr Toki and Mr Mearrick give about what occurred at the meeting of 9 August 2021, there is substantial common ground. On both accounts, which I accept, the following occurred:
(a)Mr Toki presented to Mr Mearrick the 7 August statutory declaration.
(b)After examining the 7 August statutory declaration, Mr Mearrick said it was not acceptable.
(c)Mr Toki asked why the 7 August statutory declaration was not acceptable.
(d)Mr Mearrick said it did not disclose the specific condition from which Mr Toki suffered.
(e)Mr Toki said he did not have to disclose his medical condition because it was private information.
(f)Mr Mearrick told Mr Toki that if he did not agree Mr Mearrick would call the police.
(g)Ms Mearrick called the police, and handed the phone to Mr Toki for him to talk to a police officer who was on the line.
(h)Mr Mearrick asked Mr Toki to leave the premises.
Given that, on 9 August 2021, Mr Toki was able to obtain the medical certificate to which I refer to in the following paragraph, and that the medical certificate he obtained records that Mr Toki suffers from “Severe Obstructive sleep Apnoea and Nasal Obstruction”, I find Mr Toki did say to Mr Mearrick that he did genuinely suffer from a condition and that he could provide Mr Mearrick with an exemption. Although in a broad sense it could be said Mr Mearrick had a concern with people ACTPL employed not wearing masks, I consider it unlikely that Mr Mearrick would have expressed the attitude he had on this topic by simply stating he had “an issue”. The evidence satisfies me that the concern Mr Mearrick had in relation to employees not wearing masks was to ensure that ACTPL and its employees were complying with the requirements of the PH Order.
9 August 2021 – Mr Toki obtains a medical certificate
According to Mr Toki, after the meeting Mr Toki says he attended “with my usual practitioner as I already had this appointment scheduled”, and that his “GP granted” Mr Toki “a medical exemption due to [Mr Toki’s] underlying medical conditions” (GP Certificate). The GP Certificate is as follows:[53]
To Whom It May Concern
Mr Finiki [sic]Toki is a patient of my surgery. I have been Mr Tiki’s [sic] regular General Practitioner for the past 20 years.
Mr Toki suffers from Severe Obstructive sleep Apnoea and Nasal Obstruction.
Due to the above medical condition Mr Finisi [sic] is unable to wear a Face Mask.
Mr Finisi Toki is exempt from wearing a Face Mask
[53] Affidavit F Toki 25.03.2022, [34], [35]; exhibit FT-4, pages 28-29
9 August 2021 – Mr Mearrick sends letter to Mr Toki
On 9 August 2021 Mr Mearrick sent the following letter to Mr Toki (show cause letter) (emphasis added[54]):
The purpose of this letter is to formally advise you that an allegation of serious misconduct has recently been brought to our attention
It is alleged that on 09/08/2021 you wilfully and deliberately failed to follow management directive to wear a mask or provide substantial medical evidence regarding not wearing a mask, Specifically, it is·alleged that you had only recently stopped wearing a mask in line with the Government directives. You stated the change of being able to wear a mask is due to medical grounds and you were asked by management to provide supporting evidence to support this, you have not provided valid documentation. Once this had been confirmed invalid, you then failed to wear a mask in line with Government directive. This is in breach of your statutory duty to take reasonable care for your health and safety, and the health and safety of others and to comply with lawful reasonable instructions of the Employer. If substantiated, such conduct is inconsistent with the continuation of your contract of employment and is considered serious misconduct under the Fair Work Regulations. Such conduct as the potential to cause serious and imminent risk to the health and safety of yourself and other employees on site and has the potential to adversely impact on the trust and confidence in the employment relationship that you have with the Company.
Such conduct also has the potential to breach government guidelines.
If proven these matters may result in the termination of your employment without notice.
Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to this allegation.
This. disciplinary meeting is to be conducted.at 12.30pm on 11/08/2021 at 6/8 Kilcoy Dr Tomago NSW.
[54] Errors in the original
It was put to Mr Mearrick in cross-examination that a number of statements he made in the show cause letter were exaggerations. Mr Mearrick did not accept any of the statements in the show cause letter were exaggerations.
Evidence of what occurred at the show cause meeting of 11 August 2021
On 11 August 2021 Mr Toki attended a meeting with Mr Mearrick. In his affidavit Mr Toki says he attended with Mr Bradyn Perry-Fonua as Mr Toki’s “support person”.[55] In evidence given under cross-examination, Mr Toki said that Mr Perry-Fonua was an employee of ACTPL, that Mr Perry-Fonua was also attending a meeting because he failed to provide evidence of his medical condition, and that Mr Toki was Mr Perry-Fonua’s support person.[56]
[55] Affidavit F Toki 25.03.2022, [37]
[56] T83.15
Mr Toki’s account – first affidavit
In his first affidavit Mr Toki says he attended what he described as “the disciplinary meeting” with Mr Perry-Fonua as his support person. Mr Mearrick greeted Mr Toki. Mr Mearrick went into the building and returned 10 minutes later and let Mr Toki and Mr Perry-Fonua into the building.[57] The meeting commenced by Mr Mearrick giving a general overview of the purposes of the meeting, after which the following conversation occurred:[58]
Mr Mearrick:   You did not follow company directives or government requirements.
Mr Toki:My statutory declaration is not untrue and I have been to the doctors and have a medical exemption from my GP. Here it is.
Mr Mearrick:   Yes, that is a valid medical exemption.
Mr Toki:So I will be allowed to return back to work?
Mr Mearrick:   No. It is a matter of reputation and having trainers walking around without masks for valid reasons or not is something we won’t be doing.
Mr Toki:This is not right, we should be able to work something out here.
Mr Mearrick:   Nope, I’ve made up my mind.
[57] Affidavit F Toki 25.03.2022, [37]
[58] Affidavit F Toki 25.03.2022, [38]
Mr Mearrick then turned to Mr Perry-Fonua who “was also [the] subject of a disciplinary investigation”; and Mr Toki remained in the meeting as Mr Perry-Fonua’s support person. Mr Mearrick said:[59]
I do not care if both of your exemptions are valid, I want to get rid of you both. It is a matter of time before you’re gone.
[59] Affidavit F Toki 25.03.2022, [39]
Mr Mearrick’s account
According to Mr Mearrick, Mr Toki attended a disciplinary hearing with Mr Perry-Fonua. Mr Mearrick observed that Mr Toki refused to scan in the QR code when he attended the premises. Mr Mearrick asked Mr Toki to “sign in via the QR code”, in response to which Mr Toki said he would not be signing in with the QR code “because I do not want the government to know my movements”.[60] Mr Mearrick says that when Mr Toki made this statement “it was loud and in an aggressive manner”; and Mr Perry-Fonua also refused to sign in with the QR code.[61]
[60] Affidavit A Mearrick 29.04.2022, [42]
[61] Affidavit A Mearrick 29.04.2022, [43]
Mr Mearrick made notes of the meeting.[62] He used for this purpose a pro forma titled “Disciplinary Meeting Guidance and Minutes”. There is a hand written note which appears to record: “showed medical letter from doctor. Explained this was about [illegible] and not having valid stat dec”. Next to the printed words “Employee Response” there is written “getting legal”; next to the printed words “Employer Question(s) and Employee’s response” there is written: “Explain from warning to termination”’ and under the printed words there is “Refusing to participate moving forward”.
[62] Affidavit A Mearrick 29.04.2022, [44]; exhibit AM-1, pages 103-106
Mr Toki provided Mr Mearrick with the GP Certificate, although Mr Toki did not provide Mr Mearrick with a copy to keep. The following conversation then occurred:[63]
Mr Mearrick: What we are here to discuss today is your conduct on Monday, not this medical certificate.
Mr Toki:I am getting legal advice about this.
Mr Mearrick: Your actions could result from a warning letter to termination.
[63] Affidavit A Mearrick 29.04.2022, [45]

Mr Mearrick observed Mr Toki sitting “with his arms folded moving forward and refused to participate any further”. Mr Toki nevertheless stayed to participate in the meeting. Mr Mearrick proceeded to have his meeting with Mr Perry-Fonua, for whom Mr Toki was the support person. Mr Mearrick also made notes on a document that was similar to the document on which he made notes in relation to his meeting with Mr Toki. Next to the printed words “Employer Question(s) and Employee’s response”, the following is written (errors in original):[64]
Biodyn said if I want to sack him is happy to leave will not resign as he thinks that admits doing something wrong. Finisi agreed with same.
[64] Affidavit A Mearrick 29.04.2022, [46]; exhibit AM-1, pages 107-110
Mr Mearrick says that a conversation to the following effect occurred:[65]
Mr Perry-Fonua         If you want to sack me, I am happy to leave but I do not want to resign. That would make me feel like I did the wrong thing.
Mr Toki:Yes, I agree.
Mr Perry-Fonua         I don’t want the reasons for termination to be breaching the public health order.
Mr Mearrick:             How about I say then that your employment was terminated due to business reasons? Operational requirements?
Mr Perry-Fonua         Yes, I understand.
[65] Affidavit A Mearrick 29.04.2022, [47]
After Mr Perry-Fonua left the meeting, Mr Toki said to Mr Mearrick that he wanted to “thank you for the opportunities you have given me”, noting that “I grew up poor”. Mr Mearrick then hugged Mr Toki.[66]
[66] Affidavit A Mearrick 29.04.2022, [47]
Mr Mearrick denies he said the words Mr Toki, in his first affidavit, attributes to Mr Mearrick.[67]
[67] Affidavit A Mearrick 29.04.2022, [63],[64]
Mr Toki’s second affidavit
In his second affidavit Mr Toki:
(a)denies he said “I will not be signing the QR code because I do not want the government to know my movements”;[68]
(b)denies he said he was “getting legal advice about this”;[69]
(c)recalls he asked: “what do our futures look like here?”, in response to which Mr Mearrick said: “I am looking to get rid of both of you as soon as possible”;[70]
(d)save for denying having said the words “I grew up poor”, does not dispute that a conversation to the effect set out in paragraph 53 of these reasons occurred;[71]
(e)says Mr Mearrick “made it clear he no longer wanted us employed”, and that Mr Toki “did not want to be fired because I did not feel as though I had done anything wrong”, and that, on learning his employment was terminated, he thanked Mr Mearrick for the opportunity he had given him to work.[72]
[68] Affidavit F Toki 13.05.2022, [23]
[69] Affidavit F Toki 13.05.2022, [25]
[70] Affidavit F Toki 13.05.2022, [25]
[71] Affidavit F Toki 13.05.2022, [26]
[72] Affidavit F Toki 13.05.2022, [26]
Mr Toki does not say, however, that he signed any QR Code.
Evidence given by Mr Toki under cross-examination
Mr Baroni, who appeared for the respondents, put to Mr Toki in cross-examination Mr Mearrick’s account of what occurred; and Mr Toki substantially maintained the account he has given in his two affidavits. Mr Toki, however, accepted that the purpose of the meeting of 9 August 2021 was to discuss Mr Toki’s not having provided to Mr Mearrick at the meeting of 9 August 2021 evidence of his medical condition:[73]
And as of 9 August, you hadn’t provided any evidence of that, and you continued to be stood down?‑‑‑I provided my statutory declaration.
Which he told you was insufficient; correct?‑‑‑Correct.
So because of your failure to provide the relevant evidence that Mr Mearrick had asked for, he asked for you and Bryden to go to a meeting – a disciplinary meeting on the 11th; do you recall that?‑‑‑Correct.
And the purpose of that meeting was to discuss your failure to provide the relevant evidence?‑‑‑Correct.
Yes. So the purpose of the meeting wasn’t because you had sleep apnoea or because you had a condition of any description – the purpose of the meeting, as you’ve just agreed with, was to have a discussion with you about your failure to provide evidence of your condition, that is, evidence that you didn’t have to wear a mask; correct? That was the purpose of the meeting?‑‑‑Correct.
[73] T82.25-T82.40
Mr Toki also accepted that Mr Mearrick made it clear that the purpose of the meeting was about Mr Toki’s failure to provide evidence of his medical condition:[74]
. . . . So you wouldn’t give him a copy of the doctor’s certificate. The only thing you did is let him sight it, and you took it straight back; do you recall that?‑‑‑I let him sight it, and I asked him if he wanted to take a copy.
Yes. And we’ve been through that. But it’s not in your affidavit?‑‑‑Correct.
And then he [Mr Mearrick] makes clear to you that the purpose of the meeting was not about the medical certificate at all – it was about your failure to provide the relevant evidence, as you were required to do on Monday. That’s what the meeting was about; correct?‑‑‑I provided that evidence in relation to the stat dec.
. . . . My question to you was that that was the purpose of the meeting, that is, to discuss your failure to produce the relevant evidence, as you were required to do on the Monday?‑‑‑Correct.
Yes. And then there was a discussion between you and Mr Mearrick. He said words to this effect to you, “What we are here today to discuss is your conduct on Monday – not this medical certificate”; that’s correct, isn’t it?‑‑‑I don’t recall.
[74] T83.35-T84.5
Evidence given by Mr Mearrick under cross-examination
In evidence given under cross-examination Mr Mearrick:
(a)accepted that Mr Toki gave him the medical certificate;[75]
(b)said that when the medical certificate was shown to him, Mr Mearrick did not read it thoroughly; he read where the medical certificate was from; that it was a mask exemption; and he saw Mr Toki’s name on it;[76]
(c)was not interested in the medical certificate for the purpose of the meeting;[77]
(d)denies Mr Toki said: “can I go back to work now”;[78]
(e)denies Mr Mearrick said: “No, it’s a matter of reputation, and having trainers walking around without masks for valid reasons or not. It’s something we won’t be doing”.[79]
[75] T183.10
[76] T183.35
[77] T184.5
[78] T184.30
[79] T184.30
I will consider later the findings I should make of what occurred at the 11 August 2021 meeting.
Letter of termination and response from Mr Perry-Fonua
On 11 August 2021 Mr Mearrick sent to Mr Toki by email the following letter (Termination Letter):[80]
[80] Affidavit A Mearrick 29.04.2022, [49]; exhibit AM-1, page 111
We refer to our meeting today.
As discussed, we regrettably confirm that you will not be offered ongoing employment with the Company due to continual business operational requirements.
Accordingly, we confirm that your employment with us is terminated effective 11 August 2021.
The following entitlements will be paid to you on 12/08/2021:
•Two week’s payment in lieu of notice
•98.80 hours of untaken annual leave and
•Salaries owed for the period from 02/08/2021 to 11/08/2021
We appreciate the dedication and commitment you have shown to us and our business and appreciate your understanding with our situation in these difficult times.
On 12 August 2021 Mr Perry-Fonua sent the following email to Mr Mearrick (errors in original):[81]
Dear Anthony
Thank you for your email.
Everything looks good and but I have been advised by my lawyer that section 22 of our employment contract could pose some issues for me and Finisi.
I would be grateful if you would include in the letter of termination a written acknowledgement that you have elected to waive and not enforce Clause 22 of mine and Finisi’s Employment Contract.
As I am sure you are aware, I still have a young family to support and would like to look to commence working again in this industry as soon as possible.
If you would like the non-solicitation points kept please advise as they are not the issue, the restraints that stop me and finisi from working in this industry for the restraint period are.
I again appreciate the opportunity to work with you and wish you all the best in the future.
[81] Affidavit A Mearrick 29.04.2022, [50]; exhibit AM-1, page 112
Mr Toki does not, in his second affidavit, refer to this email, which Mr Mearrick had annexed to his affidavit. Under cross-examination, Mr Toki was asked whether he was aware Mr Perry-Fonua had sent the email, and he said he was not aware Mr Perry-Fonua had sent that email.[82] That evidence must be viewed in the light of Mr Toki’s second affidavit. Although he refers to and disputes a number of matters in Mr Mearrick’s affidavit, he does not refer to the email Mr Perry-Fonua sent to Mr Mearrick on 12 August 2021, which Mr Mearrick annexes to his affidavit.
[82] 14.11.2022 T86.15
Mr Toki commenced employment with “First Choice Training Solutions” on 1 December 2021,[83] and, from around 9 April 2022, Mr Toki worked as a contractor.[84]
[83] Exhibit D
[84] Exhibit E
What occurred at the show cause meeting of 11 August 2021?
Each party appears to have assumed that the accounts each of Mr Toki and Mr Mearrick gives of the meeting of 11 August 2021 is complete; and that the only question I must determine is which of the two accounts I should accept. Even on this assumption Mr Toki, in his written submissions, has not identified matters on which he relies for submitting I should prefer his account.
The respondents, on the other hand, identify matters on which they rely for my preferring Mr Mearrick’s account. These are the submissions that in giving evidence under cross-examination Mr Toki was evasive; he failed to make appropriate concessions;[85] Mr Toki did not disclose his medical condition until 11 August 2021;[86] Mr Toki deliberately failed to disclose his medical condition when he was required to do so;[87] his refusal to wear a mask was motivated by his “anti vax” and “freedom” views rather than any condition;[88] Mr Toki’s evidence about his being embarrassed by his condition should be rejected;[89] and at the show cause meeting he failed to take any meaningful part in the meeting.[90]
[85] Respondents’ Submissions, [54.a.]
[86] Respondents’ Submissions, [54.b.]
[87] Respondents’ Submissions, [54.c.]
[88] Respondents’ Submissions, [54.d.]
[89] Respondents’ Submissions, [54.e.]
[90] Respondents’ Submissions, [54.f.]
Although Mr Toki may be said to have been cautious in giving his evidence, I do not accept he was an evasive witness; and I do not accept that Mr Toki was not embarrassed by his medical condition. I am satisfied that Mr Toki did suffer from the conditions stated in the GP Certificate, and he was embarrassed and in any event was particularly reluctant to disclose information about his health which he considered to be private information. Mr Toki may have been unwise in not disclosing his condition at the time he commenced his employment with ACTPL, but I am satisfied that he did not do so because he was embarrassed, and he desired to keep his personal medical information confidential. It necessarily follows that I am not satisfied that Mr Toki’s reluctance to disclose personal medical information was due to any “anti vax” and “freedom” views. Moreover, the evidence falls short of showing what views constituted “anti vax” and “freedom” views, or that Mr Toki held such views, and that it was his views on these subjects that motivated his unwillingness to wear a face mask.
The matters that are relevant to determining what occurred at the show cause meeting of 11 August 2021, and the manner in which they are relevant, are as follows:
(a)The show cause letter stated that the purpose of the show cause meeting was to provide Mr Toki with “a suitable opportunity’ for Mr Toki to respond to “this allegation”, namely, that Mr Toki had wilfully and deliberately failed to follow a management directive to wear a mask or provide substantial medical evidence regarding his not wearing a mask.
(b)Mr Toki accepted in cross-examination that when Mr Toki handed the GP Certificate to Mr Mearrick, Mr Mearrick said that they were there to discuss Mr Toki’s conduct on Monday 9 August 2021.
(c)The matters in (a) and (b):
(i)render more probable than not that Mr Toki and Mr Mearrick expected that the discussion at the show cause meeting would be centred on what had occurred on 9 August 2021 and, for that reason, the discussion of the meeting was centred on that subject;
(ii)render more probable than not Mr Toki’s evidence that, before he handed to Mr Mearrick the GP Certificate, Mr Mearrick said to Mr Toki that Mr Toki did not follow company directives or government requirements, and that Mr Toki responded by saying his statutory declaration is not untrue, and that he had been to the doctor and had a medical exemption from his GP;
(iii)render more probable than not that it was after Mr Toki handed to Mr Mearrick the GP Certificate that Mr Mearrick said that they were there to discuss Mr Toki’s conduct on Monday, 9 August 2021;
(iv)in light of (iii), render more probable than not:
(A)Mr Mearrick’s evidence that he observed Mr Toki sitting “with his arms folded moving forward and refused to participate any further”; and
(B)Mr Mearrick’s not having said (contrary to Mr Toki’s evidence) that: the GP Certificate was a valid medical exemption; he did not care “if both of your exemptions are valid, I want to get rid of you both. It is a matter of time before you’re gone”; and “[i]t is a matter of reputation and having trainers walking around without masks for valid reasons or not is something we won’t be doing”.
(d)The Termination Letter to Mr Toki stated that “as discussed today”, Mr Toki “will not be offered ongoing employment” with ACTPL “due to continual operational requirements”; and Mr Toki did not telephone or otherwise inform Mr Mearrick that the reason the Termination Letter gave for ACTPL’s termination of Mr Toki’s employment was incorrect.[91] The Termination Letter, therefore, renders more probable than not that:
[91] 14.11.2022 T88.5
(i)Mr Mearrick drafted and sent the Termination Letter pursuant to some discussion at the meeting about what should be included in a termination letter;
(ii)the discussion pursuant to which the Termination Letter was sent is the discussion to which Mr Mearrick deposes in which:
(A)Mr Perry-Fonua said that: (i) if Mr Mearrick wanted to sack him, Mr Perry-Fonua would be happy to leave; (ii) he did not want to resign, however, because that would make him feel as if he had done the wrong thing; and (iii) Mr Perry-Fonua did not want Mr Mearrick to state as the reason for terminating Mr Perry-Fonua’s employment that he had breached the public health order;
(B)in response to (A) Mr Mearrick suggested that he would say that his employment was terminated due to business reasons, operational requirements; and
(C)in response to (B) Mr Perry-Fonua said he understood; and
(iii)in the light of (ii) Mr Toki agreed with what was discussed between Mr Perry-Fonua and Mr Mearrick.
(e)Mr Mearrick gave evidence that he made notes at the meeting. It was not suggested to Mr Mearrick that he did not do so. That renders more probable than not that the matters Mr Mearrick recorded on the document reflect matters that were discussed at the meeting. That means that Mr Mearrick’s having recorded the “showed medical letter from doctor. Explained this was about [illegible] and not having valid stat dec”, “getting legal”; next to the printed words “Employer Question(s) and Employee’s response”, “Explain from warning to termination”, “Refusing to participate moving forward” render more probable than not that these expressions accurately reflect what was said and what occurred at the show cause meeting.
In the light of these matters, I make the following findings:
(a)Mr Mearrick called the show cause meeting for the purpose of giving Mr Toki an opportunity to respond to the allegation that Mr Toki had wilfully and deliberately failed to follow a management directive to wear a mask or provide substantial medical evidence regarding not wearing a mask; and Mr Toki understood that that was the purpose of the meeting.
(b)At the beginning of the meeting, after Mr Mearrick explained the purpose of the meeting, and Mr Mearrick informed Mr Toki that he had not followed company directives or government requirements. Mr Toki responded by saying that his statutory declaration is not untrue, and that he had been to the GP and has a medical exemption from his GP. Mr Toki then provided to Mr Mearrick the GP Certificate. Mr Mearrick said that they were at the meeting to discuss Mr Toki’s conduct on 9 August 2021.
(c)Mr Toki said nothing further about his conduct on 9 August 2021; but, in Mr Toki’s presence, Mr Mearrick had a discussion with Mr Perry-Fonua near the end of which Mr Perry-Fonua said: (i) if Mr Mearrick wanted to sack him, Mr Perry-Fonua would be happy to leave; (ii) he did not want to resign, however, because that would make him feel as if he had done the wrong thing; and (iii) Mr Perry-Fonua did not want Mr Mearrick to state as the reason for terminating his employment that he breached the public health order. Mr Mearrick suggested that he would say that Mr Perry-Fonua’s employment was terminated due to business reasons, operational requirements.
(d)In some way, Mr Toki manifested his agreement to the discussion between Mr Perry-Fonua and Mr Mearrick.
(e)Consistently with the discussion between Mr Mearrick and Mr Perry-Fonua, and Mr Toki’s agreement with that discussion, Mr Mearrick stated in the Termination Letter that Mr Toki would not be offered ongoing employment “due to continual business operational requirements”.
Events after termination
According to Mr Toki, on 11 August 2021 he had a telephone conversation from [Mr X], an employee of ACTPL. [Mr X] told Mr Toki that he was returning to work, and, in response to Mr Toki’s question whether he was going to wear a mask, [Mr X] said: “They need me to work. I was pressured by Anthony to reverse my stat sec [sic]”. After Mr Toki said that was not right, [Mr X] said: “I know, but I have a young family and need to work”.[92] In his affidavit, [Mr X] denies having a conversation to the effect Mr Toki deposes, and he says neither Mr Mearrick nor any other employee of ACTPL pressured him to return to work, or to return to work with a face mask.[93]
[92] Affidavit F Toki 25.03.2022, [41]
[93] Affidavit R Thompson 29.04.2022, [3]
STATUTORY PROVISIONS AND SOME PRINCIPLES
Before I identify the pleadings and the parties’ submissions, it will be convenient to identify at this point of my reasons the relevant statutory provisions and principles on which Mr Toki relies.
Subsection 340(1) of the FW Act
Subsection 340(1) of the FW Act provides:
A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act.
Adverse action
First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act, which relevantly provides as follows:
The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action

Item Column 1
Adverse action is taken by ... Column 2
if ...

1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.

Meaning of adverse action
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.

Dismisses the employee

The FW Act does not define the expression “dismisses the employee” that appears in the table contained in s 342(1) of the FW Act. The word “dismissed”, however, appears in s 12 of the FW Act, after which appear the words “see section 386”. Section 386 is contained in Part 3-2 of the FW Act, which deals with unfair dismissal. Subsection 386(1) provides:
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There is no dispute that by sending the Termination Letter to Mr Toki ACTPL dismissed Mr Toki from his employment and, for that reason, had taken adverse action against him for the purpose of s 340(1) of the FW Act.
Injures the employee
The expression “injure[s] an employee in his or her employment”, as used in s 298K(1) of the Workplace Relations Act 1996 (Cth), was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia. His Honour referred[94] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[95]
I cannot help thinking that “injury” refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.
[94] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329, at 341 [72]
[95] Childs v Metropolitan Transport Trust [1981] FCA 200
Alters position of employee
The expression “alters the position of the employee to the employee’s prejudice” has been considered in a number of cases. In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors[96] R D Nicholson J referred to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[97]
It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee’s position within the meaning of s 5 [of the 1904 Act], and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term is gone.
[96] Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67, at 100-101 ([229])
[97] Childs v Metropolitan Transport Trust [1981] FCA 200
Workplace right -general
The second matter that must be established in an action for contravention of s 340(1) of the FW Act is that the employee against whom the employer has taken adverse action has, among other things, exercised a “workplace right”. That expression is defined in s 341(1) of the FW Act, which relevantly provides:
A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
. . . .
(c)is able to make a complaint or inquiry:
(i) . . . .
(ii) if the person is an employee – in relation to his or her employment.
Workplace right – s 340(1)(a)
The expression “workplace law” is defined in s.12 of the FW Act to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.
Workplace right - s 341(1)(c)(ii)
Complaint or inquiry
The Full Federal Court recently explained the notion of “complaint” for the purposes of s 341(1)(c) of the FW Act as follows:[98]
In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
[98] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59], [60]
The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[99]
[99] Oxford English Dictionary
“Is able”
There has been a divergence of views among the Judges of the Federal Court of Australia about whether the expression “is able” imports a requirement that an ability to make a complaint or inquiry must be “underpinned by an entitlement or right”.[100] I reviewed some of the authorities in El-Hajje v Rissalah College Limited.[101] I there concluded that the most recent Full Federal Court authority[102] did not endorse the view that “is able” in s 341(1)(c)(ii) of the FW Act requires that the ability to make a complaint be underpinned by an entitlement or legal right. McElwaine J (with whose reasons Rangiah and Downes JJ agreed) identified the divergent views in Jess v Cooloola Milk Pty Ltd.[103]
[100] The origins of that expression in the context of s 340(1)(c)(ii) of the FW Act is in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625]
[101] El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260, at [19]
[102] Alam v National Australia Bank Limited [2021] FCAFC 178
[103] Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, at [75]-[78]
After I gave judgment in El-Hajje, the High Court of Australia decided Qantas Airways Limited v Transport Workers Union of Australia. The plurality of the High Court construed “is able” in s 341(1)(c)(ii) of the FW Act without referring to whether there had to be a source for the ability to make a complaint or inquiry. The plurality said:[104]
The words “is able to” in s 341(1)(b) and (c), while not words of limitation,[105] necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).
[104] Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27, at [36]
[105] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34]; Alam v National Australia Bank Ltd [2021] FCAFC 178, at [85]
The footnote to the words “not words of limitation” references two cases. The first is paragraph 34 of the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan, in which his Honour said:[106]
The words “is able to” are not of themselves words of limitation. Their function when used in paras (b) and (c) of s 341(1) is to identify an actuating circumstance by reference to an ability held by the person that the scheme seeks to protect. The subject of that ability or those abilities is then specified in the remainder of the paragraph. The plain words of the provision only raise one inquiry. Does the protected person hold or possess the particular ability specified? That is a factual inquiry made as part of an exercise for discerning whether a particular circumstance does or does not exist. There is nothing in the text and in particular the words “is able to”, which suggests that any inquiry is required as to the provenance of the ability held, that is, how the ability was acquired or whether or not there is some underlying foundation for its existence. All that matters, on the plain words of the provision and in the context of its function, is whether or not the circumstance exists that the protected person has or holds the specified ability.
[106] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34].
The second case the footnote the plurality in the passage I have quoted references is paragraph 85 of the judgment of the Full Federal Court in Alam; but that paragraph does nothing more than quote paragraph 34 of the judgment of Bromberg J in Cummins South Pacific.[107]
[107] Alam v National Australia Bank Ltd [2021] FCAFC 178, at [85]
The effect of the plurality’s construction is that it is not necessary to identify some underlying entitlement before a person can be said to be “able” to make a complaint or inquiry in relation to his or her employment for the purposes of s 341(1)(c)(ii) of the FW Act; all that is required is that “circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom”, that freedom or power, in relation to s 341(1)(c)(ii), being an employee’s freedom to make a complaint or inquiry in relation to his or her employment. This appears to be the view of Rares ACJ and Katzmann J in Construction, Forestry, Maritime, Mining and Energy Union v Quirk,[108] although Colvin J may have held a different view.[109]
[108] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [43] (Rares ACJ) and [337] (Katzmann J)
[109] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [516], and [522].
“In relation to”
In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression “in relation to” as used in s 341(1)(c)(ii), and concluded that a person will make a complaint or inquiry “in relation to” his or her employment if the complaint is about his or her employment rights or obligations, or “about a subject that may prejudice the person in his or her employment”.[110]
[110] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77]
Adverse action because of exercise of workplace right
The third matter that must be proved to establish a contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason.[111] That requirement arises from the presence of the word “because”: s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[112] or must be an “operative or immediate reason for the action”.[113]
[111] FW Act, s 360
[112] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[113] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whose reasons Rangiah J agreed), made the following observations about the effect and operation of s 361(1) of the FW Act:[114]
In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102; (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision‑maker acting on behalf of the employer.
[114] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, at [27]; [28]
Also relevant is the following passage from the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan:[115]
True it is that the disbelief of the decision-maker as to the reason given for the taking of adverse action will ordinarily be a weighty consideration and often a determinative consideration as to whether a reason asserted by an applicant is a substantial and operative reason for adverse action. However, neither that observation nor the s 361 statutory presumption itself, relieves a court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence. Whilst the statutory presumption casts an onus on the respondent to satisfy the court on the evidence before it that the asserted reason has been negated, it does not require that finding to be based solely on the evidence of the decision-maker or to be based solely on the evidence called or otherwise put before the court by a respondent.
[115] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [116]
Where the employer is a corporation, it will be necessary to identify the person or persons whose mind is to be treated as the mind of the corporation for the purpose of determining whether the corporation did not take the adverse action for the reason, or for reasons that did not include as a substantial and operative factor, a person’s exercising a workplace right. That would usually require identifying and applying what Lord Hoffmann, in Meridian Global Funds Management Asia Ltd v Securities Commission, described as “rules of attribution”.[116] These are rules that identify the circumstances in which the acts, omissions, or state of mind of one person are to be attributed to another person, including to an artificial legal person such as a company. In the context of companies, “rules of attribution” are “rules by which acts are attributed to the company”.[117] There are a number of sources of rules of attribution in relation to companies:[118]
The company’s primary rules of attribution will generally be found in its constitution, typically the articles of association . . . . There are also primary rules of attribution which are not expressly stated in the articles but implied by company law . . . .
These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company’s primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.
[116] Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, at page 506
[117] Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, at page 506
[118] Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, at page 506

The FW Act itself contains rules of attribution for corporations. One rule is that provided for by s 793(1) of the FW Act, which is as follows:
Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
Subsection 351(1) of the FW Act
Subsection 351(1) of the FW Act relevantly provides that an “employer must not take adverse action against a person who is an employee . . . of the employer because of the person’s . . . physical . . . disability”. The expression “adverse action” has the meaning to which I have already referred; and s 61 also applies to s 351 of the FW Act.
PLEADINGS
Mr Toki has stated his case in a Form 2 he filed at the time he filed the application. In his Form 2, Mr Toki alleges as follows:
(a)Mr Toki was an employee of ACTPL from 13 August 2020 to 11 August 2021.[119]
[119] Form 2 Part G, [3]
(b)Mr Toki was entitled to the benefits of the Educational Services (Post-Secondary Education) Award 2020 (Award).[120]
[120] Form 2 Part G, [4]
(c)Mr Toki has a disability within the meaning of s 351 of the FW Act, namely, severe obstructive sleep apnoea and nasal obstruction.[121]
[121] Form 2 Part G, [5]
(d)On 6 August 2021 Mr Toki received a direction from Mr Mearrick on behalf of ACTPL in relation to the wearing of a face covering, and the direction threatened employees who would not wear a face mask without relevant evidence to be suspended without pay.[122]
[122] Form 2 Part G, [7]
(e)On 6 August 2021 Mr Toki exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act, by making an enquiry of Mr Mearrick in relation to the direction noting that he suffered from a condition or disability that makes the wearing of a fitted face covering unsuitable.[123]
[123] Form 2 Part G, [8]
(f)Mr Toki provided a statutory declaration and a medical certificate issued by his general practitioner that stated he has a physical illness, condition, or disability that Mr Toki is therefore unable to wear a fitted face covering.[124]
[124] Form 2 Part G, [9]
(g)Mr Mearrick advised Mr Toki he will not allow him to attend work without wearing a face covering.[125]
[125] Form 2 Part G, [10]
(h)On 9 August 2021 Mr Mearrick sent a document to Mr Toki informing him that he was suspended, and was directed to attend a disciplinary meeting.[126]
[126] Form 2 Part G, [11]
(i)On 11 August 2021 the respondents dismissed Mr Toki because he is unable to wear a face covering.[127]
[127] Form 2 Part G, [12]
(j)ACTPL’s suspending and then terminating Mr Toki’s employment constituted ACTPL’s taking adverse action against Mr Toki within the meaning of s 342 of the FW Act.[128]
[128] Form 2 Part G, [13]
(k)Mr Toki was entitled to the benefit of workplace rights, including the following:[129]
[129] Form 2 Part G, [14]
(i)being able to make a complaint or inquiry in relation to his employment with the respondents;
(ii)an exemption not to wear a face covering pursuant to the PH Order (subject to relevant evidence);
(iii)a right to work from home pursuant to the PH Order (subject to suitability);
(iv)consultation about major workplace changes pursuant to cl 28 of the Award;
(v)dispute resolution procedures pursuant to cl 30 of the Award; and
(vi)Consultation with the Respondents pursuant to Part 5, Division 2 of the Work Health and Safety Act 2011 (NSW).
(l)Mr Toki exercised workplace rights, including by:[130]
(i)asking to be exempted from wearing a face covering and providing the relevant evidence;
(ii)asking to work from home;
(iii)asking for other alternatives than wearing a mask; and
(iv)expressing his views about the implementation of the PHO and raising work health and safety issues.
(m)ACTPL took the adverse action against Mr Toki because he was entitled to, or exercised the workplace rights identified in (l), or to prevent Mr Toki from exercising those workplace rights, or because Mr Toki suffered from a disability.[131]
[130] Form 2 Part G, [15]
[131] Form 2 Part G, [16], [17]
In their defence the respondents admit Mr Toki was covered by the Award, but put in issue most of the allegations contained in the Form 2. Further, the respondents allege that ACTPL terminated Mr Toki’s employment “because he breached the PHO on work premises”.[132]
MR TOKI’S CLAIMS UNDER S 340(1) OF THE FW ACT
[132] Defence, [12.a.]
Did Mr Toki hold any workplace rights?
Mr Toki claims he held a number of workplace rights.
Complaint of inquiry in relation to employment
There is no question that Mr Toki had the workplace rights provided for by s 341(1)(c)(ii) of the FW Act.
Entitlement under orders 8 and 17 of the PH Order
Mr Toki submits that orders 8 and 17 of the PH Order regulate the relations between employer and employee, and they relate to “occupational health and safety matters”.[133] The respondents, on the other hand, submit that the PH Order is not directed to regulating the relationship between employers and employees; its object is to respond to cases of, or involving community transmissions of COVID-19.
[133] Submissions for the applicant, [38]-[49]
It is true that the object of the PH Order is to respond to cases of, or involving community transmissions of COVID-19; but orders 8 and 17 are specifically directed to regulating the relations of employer and employee in relation to COVID-19 at the workplace. Orders 8 and 17 are directed to occupational health and safety matters at the workplace as they apply to COVID-19; and the (qualified) right to work from home, provided for by order 8, and the exemptions, provided for by order 17, are each a “benefit of . . . . a workplace law” within the meaning of s 341(1)(a) of the FW Act.
Mr Toki, therefore, was entitled to the benefit of orders 8 and 17 to the extent he could establish those orders applied to him.
Clauses 28 and 30 of the Award
Clause 28 of the Award (as it applied in August 2021) was as follows:
28.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i)        the introduction of the changes; and
(ii)       their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
28.2For the purposes of the discussion under clause 28.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)       their nature; and
(b)       their expected effect on employees; and
(c)       any other matters likely to affect employees.
28.3Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
28.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).
28.5     In clause 28 significant effects, on employees, includes any of the following:
(a)       termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c)loss of, or reduction in, job or promotion opportunities; or
(d)loss of, or reduction in, job tenure; or
(e)alteration of hours of work; or
(f)the need for employees to be retrained or transferred to other work or locations; or
(g)job restructuring.
28.6Where this award makes provision for alteration of any of the matters defined at clause 28.5, such alteration is taken not to have significant effect.
There is no question that cl 28 of the Award is a workplace law; and that Mr Toki would have been entitled to the benefit of the clause, if he were otherwise in a position to prove that cl 28 applied to him.
Clause 30 of the Award prescribes procedures that were to be followed “if a dispute arises under this award or in relation to the NES”. Again, there is no question that cl 30 is a workplace law; and that Mr Toki would have been entitled to the benefit of the clause, if he is otherwise in a position to prove that cl 30 applied to him.
Part 5, Division 2 of the Work Health and Safety Act 2011 (NSW)
Part 5 Division 2 of the Work Health and Safety Act 2011 (NSW) contains provisions that require a person who conducts a business to consult, in accordance with the Division and regulations, with workers who are directly affected by a matter relating to work health or safety. These provisions also constitute a workplace law; and Mr Toki would have been entitled to the benefit of the clause, if he is otherwise in a position to prove that the Division applied to him.
Did Mr Toki exercise any entitlement under orders 8 or 17?
Although Mr Toki relies on holding five classes of workplace rights, he alleges he exercised only the right provided for by s 341(1)(c)(ii) of the FW Act. Mr Toki alleges that he exercised the right to make an inquiry on 6 and 9 August 2021. I am satisfied that, on the findings I have made of what occurred on 6 and 9 August 2021, Mr Toki made enquiries in relation to his employment and, for that reason, exercised the workplace right provided for by s 341(1)(c)(ii) of the FW Act.
Adverse action
Mr Toki submits ACTPL subjected him to four forms of adverse action.[134] First, on 9 August 2021 ACTPL suspended Mr Toki from his employment. Second, by issuing the show cause letter ACTPL took disciplinary action against Mr Toki. Third, by sending the Termination Letter ACTPL dismissed Mr Toki from his employment. I am satisfied that ACTPL suspended Mr Toki from his employment, subjected him to disciplinary action, and dismissed him from his employment, and that by taking these actions ACTPL took adverse action against Mr Toki.
[134] Submissions for the applicant, [21]
The fourth form of adverse action Mr Toki alleges ACTPL had taken against him was to discriminate against him because of his severe obstructive sleep apnoea and nasal obstruction. Mr Toki submits that the comparison is between employees who suffered from a medical condition that made it unsuitable to wear a face mask, and employees who did not suffer from a medical condition that made it unsuitable to wear a face mask. Mr Toki submits that employees who can wear a face mask were not subjected “to some, or all of the adverse actions that Mr Toki was subjected to”.[135] It appears that the manner in which Mr Toki claims he was treated differently from employees who could wear face masks consists of the first three types of adverse action he alleges ACTPL had taken against him. If that is the case, Mr Toki’s claim for adverse action by means of discrimination does not add anything to the first three forms of adverse action to which he was subjected.
Purpose for which Mr Mearrick took the adverse action
[135] Submissions for the applicant, [28]
Question to be determined
Mr Toki submits there was a “noticeable omission” in Mr Mearrick’s evidence, namely, Mr Mearrick “explicitly disavowing the adverse action occurred as a result of the assertion of right under the PHO and making inquiries about exemptions to the mask wearing”.[136]
[136] Submissions for the applicant, [86]
It is the case that Mr Mearrick does not in his affidavit expressly articulate the reason or reasons for deciding on 9 August 2021 to direct Mr Toki to leave the premises, or for deciding to issue the show cause letter dated 9 August 2021, or for deciding on 11 August 2021 to dismiss Mr Toki from his employment; and Mr Mearrick does not in terms address the allegations that he did not take any of these actions because Mr Toki has workplace rights and rights under the PH Order. As I have already noted, however, in their defence the respondents allege that ACTPL dismissed Mr Toki from his employment “because he breached the PHO on work premises” (Alleged Reason);[137] and in evidence given under cross-examination, Mr Mearrick accepted that the “incidents” Mr Mearrick “raises at paragraph 69” of his affidavit “are the incidents [the respondents] rely on for [Mr Toki’s termination] as the real reason”.[138] Paragraph 69 of Mr Mearrick’s affidavit is as follows:
The Applicant attended the workplace on 6 August 2021 and 9 August 2021 in contravention of the PHO as he:
(a) failed to wear a face mask and failed to have a valid statutory declaration to exempt him from wearing a face mask.
(b) Failed to QR code sign in when entering the First Respondent's premises.
[137] Defence, [12.a]
[138] T155.5
The question I must determine, therefore, is whether, given the contemporaneous evidence I have identified, and the findings I have made, the respondents have established, on the balance of probabilities, that Mr Mearrick, on behalf of ACTPL, took the adverse action against Mr Toki for the Alleged Reason or for reasons that included the Alleged Reason but did not include as a substantial and operative factor Mr Toki having, or having exercised, any workplace rights.
Mr Toki’s submissions
Mr Toki submits that I should not accept that Mr Mearrick, on behalf of ACTPL, took the adverse actions for the Alleged Reason, or for reasons that included the Alleged Reason but did not include as a substantial and operative factor Mr Toki having exercised any workplace rights. Mr Toki submits that Mr Mearrick took the adverse actions because he did not want to consider making any adjustments to ACTPL’s operations to accommodate people like Mr Toki who had disabilities;[139] and an inference is available to be drawn that Mr Mearrick “simply does not accept that people with conditions such as Mr Toki should work in the training industry, at least not in the hands ‘on training of heavy plant and equipment”.[140] The necessary implication of these submissions is that Mr Mearrick did not genuinely believe the allegations and assertions Mr Mearrick made in the show cause letter. Mr Toki submits that those allegations and assertions “can only be seen as an unreliable assertion of the purported reason for the dismissal”;[141] and “cannot be taken seriously and can be regarded [as] an attempt to distract from the actual reasons for the adverse action”.[142]
[139] Submissions for the applicant, [119]. This was put to, but not accepted by, Mr Mearrick in cross-examination - T191.15; T191.45-T191.25
[140] Submissions for the applicant, [120]
[141] Submissions for the applicant, [112]
[142] Submissions for the applicant, [113]
Mr Toki relies on two matters in support of these submissions.
Show cause letter contains misapprehensions
The first is the contention that the show cause letter “contains several misapprehensions”. Mr Toki identifies two.
(a)The assertion that “substantial medical evidence” was required, when in truth no such substantial medical was required.[143]
(b)The assertion that Mr Toki “failed to wear a mask” was unreliable because on Mr Mearrick’s own evidence, more than 80% of staff were not wearing a mask on 9 August 2021.[144] That is a reference to Ms Mearrick having stated to the police on the telephone on 9 August 2021 that “[w]e have five out of our six staff not wearing masks”.[145]
[143] Submissions for the applicant, [112(a)]
[144] Submissions for the applicant, [112(b)]
[145] Affidavit A Mearrick 29.04.2022, [38]
Neither of these matters supports the contention that the show cause letter manifested any misapprehensions. The assertion that “substantial medical evidence” was required must be viewed with the text that followed it, namely:
Specifically, it is·alleged that you had only recently stopped wearing a mask in line with the Government directives. You stated the change of being able to wear a mask is due to medical grounds and you were asked by management to provide supporting evidence to support this, you have not provided valid documentation. Once this had been confirmed invalid, you then failed to wear a mask in line with Government directive. This is in breach of your statutory duty to take reasonable care for your health and safety, and the health and safety of others and to comply with lawful reasonable instructions of the Employer.
This passage gives content to the allegation that “substantial evidence was required” by stating a number of specific allegations.
The second of the assertions Mr Toki says constituted a misapprehension, namely, that Mr Toki “failed to wear a mask”, was not rendered inaccurate only because other persons also were not wearing a mask on the premises (if that is the correct construction of what Ms Mearrick intended to covey to the police).
Even if the show cause letter contains misapprehensions, that by itself is incapable of supporting a finding that Mr Mearrick did not believe the matters he alleged in the show cause letter to be true.
Treatment of [Mr X]
The second matter on which Mr Toki relies for submitting that Mr Mearrick, on behalf of ACTPL, took adverse action against Mr Toki because he did not want to consider making any adjustments to ACTPL’s operations to accommodate people like Mr Toki who had disabilities, is Mr Mearrick’s treatment of another employee, [Mr X], as revealed in a text message [Mr X] sent to Mr Toki on 14 August 2021, and in documents the respondents produced in answer to a notice to produce.[146] In his text message [Mr X] said:[147]
Just got an email back from Anthony saying even though I still have an exemption they still they still won’t let me back to work if I’m not wearing a face mask and if I choose to wait it’ll be unpaid unless I use my leave. I’ll be honest my bro’s I think I’m gonna negotiate something for me to go back if I can, I can’t afford to be stood down with no pay. It makes me feel like a weak . . . . I don’t know what to do.
[146] I marked these documents in chambers as exhibit H
[147] Affidavit F Toki 13.05.2022, [9]; exhibit FT-1
The email to which this text refers is in evidence, and is as follows:
We understand that you have provided a valid statutory declaration that exempts you from wearing a face mask in the workplace, which is consistent with the New South Wales Government public health order. Specifically, stating that it is on medical grounds.
We welcome any suggestions in relation to options for the business to consider that may allow you to attend the workplace without posing any risk to your health and safety and other employees (for example, wearing a mask for five minutes, allowing you to access shared facilities).
Where there are no other alternative options, the business has a duty of care to ensure the health and safety of not only you, but your fellow colleagues whilst at the workplace. At this stage, we have conducted a risk assessment which has found that we cannot safely allow you to be in the workplace for any period of time not wearing a face mask, due to the risk it poses to yourself and other employees.
It is not possible to separate you and other employees in the workplace. You cannot perform your work from home, and other control measures such as hand sanitiser and regular cleaning of the workplace will not control the risk.
Therefore, this would mean that we cannot have you attend the workplace until the face mask restrictions are lifted. For the avoidance of doubt, this period would be unpaid. However, you may access your accrued annual leave if you elect to or utilise personal/carer's leave if you are unwell, injured, or sick.
If you would like to discuss this further please reach out to me

At 7:17 am on 17 August 2021 Mr Mearrick sent an email to [Mr X] in which he confirmed what was said during a telephone conversation, namely, that “we will need a clearance from your doctor to ensure that wearing a mask when required will not make your condition worse”, noting that if there “is any doubt that wearing a mask will cause [Mr X] any harm we need to know”. [Mr X] responded by email later on 17 August 2021, to which he attached a “medical clearance to return back to work”, noting that [Mr X] had spoken to his doctor who said that if [Mr X] had any issues he could return to his doctor “and he will sort out more help”.
There is a significant difference between [Mr X’s] and Mr Toki’s circumstances. Unlike Mr Toki, [Mr X] complied with the directive of 6 August 2021 to provide a valid statutory declaration in support of [Mr X’s] claim that he was exempted from the requirement of wearing a mask. Further, Mr Mearrick’s email of 14 August 2021 does not manifest an intention of not wanting to consider making any adjustments to ACTPL’s operations to accommodate people like [Mr X] who had disabilities which prevented them or may have prevented them from wearing a face mask. Mr Mearrick’s email indicates Mr Mearrick did consider whether he could make adjustments, but concluded that he could not. In any event, Mr Mearrick did not terminate [Mr X’s] employment; he stood him down. Mr Mearrick’s email also manifests a concern “to ensure the health and safety of not only [Mr X], but [Mr X’s] fellow colleagues whilst at the workplace”.
Did ACTPL take adverse action because of the Alleged Reason?
I am satisfied on the basis of the contemporaneous evidence I have identified, and the findings I have made, that Mr Mearrick, on behalf of ACTPL, decided to stand down Mr Toki from his employment, take disciplinary action against him, and, ultimately, dismiss Mr Toki from his employment, for the Alleged Reason, that is, because Mr Mearrick believed Mr Toki breached the PH Order on work premises. The principal findings are as follows:
(a)At a meeting on ACTPL’s premises on 9 August 2021, Mr Mearrick told Mr Toki that the 7 August 2021 statutory declaration, being the statutory declaration on which he relied for claiming he was exempt from the requirement to wear a face mask, was not valid.
(b)Mr Toki did not accept Mr Mearrick’s statement that the 7 August 2021 statutory declaration was not valid, which led to Ms Mearrick telephoning the police with a view to Mr Toki talking to them, and to Mr Mearrick directing Mr Toki to leave the premises.
(c)Also on 9 August 2021 Mr Mearrick sent to Mr Toki the show cause letter in which he stated that it was alleged, among other things, that Mr Toki had “failed to wear a mask in line with Government directive”, and in which he required Mr Toki to attend the show cause meeting on 11 August 2021 to provide Mr Toki with a suitable opportunity to respond to the allegations made in the show cause letter.
(d)At the show cause meeting on 11 August 2021, although Mr Toki provided to Mr Mearrick the GP Certificate, thus disclosing to Mr Mearrick for the first time the nature of the medical condition on which Mr Toki relied for claiming an exemption from the requirement of having to wear a mask, Mr Mearrick informed Mr Toki they were at the meeting to discuss Mr Toki’s conduct on 9 August 2021, after which Mr Toki said nothing further about his conduct on 9 August 2021.
(e)Also during the show cause meeting, in the presence of Mr Toki, Mr Perry-Fonua stated that he did not want the reason for the termination of his employment to be his breaching the public health order. Mr Perry-Fonua’s having stated that he did not want the reason for the termination of his employment to be his breaching the public health order suggests he understood that Mr Mearrick intended to terminate his employment for breaching the public a health order.
In short, Mr Mearrick, by the show cause letter, manifested a belief that Mr Toki had not complied with the requirements of the PH Order that he wear a mask; and that Mr Toki’s having failed to do so was a ground for summarily dismissing him from his employment. Mr Toki did not at the show cause meeting put forward anything that led Mr Mearrick to change his mind that the allegations he made in the show cause letter were true; Mr Mearrick decided to terminate Mr Toki’s employment because Mr Toki failed to comply with the PH Order; but, following his discussion with Mr Perry-Fonua, Mr Mearrick decided he would not record in the Termination Letter that he had decided to terminate Mr Toki’s employment because he failed to comply with the PH Order, but that he would record that he had decided to terminate Mr Toki’s employment “due to continual business operational requirements”. Mr Mearrick did not decide to terminate Mr Toki’s employment, or take the other adverse action against Mr Toki, because Mr Toki held or exercised workplace rights.
Conclusion
For these reasons, Mr Toki’s claims based on s 340(1) of the FW Act fail.
MR TOKI’S CLAIMS BASED ON S 351
Given I am satisfied that Mr Mearrick, on behalf of ACTPL, decided to stand down Mr Toki from his employment, take disciplinary action against him, and, ultimately dismiss Mr Toki from his employment for the Alleged Reason, that is, because Mr Toki breached the PH Order on work premises, Mr Toki’s claim based on s 351(1) of the FW Act also fails.
DISPOSITION
I propose to order that the application be dismissed.

I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 25 June 2024

At [523], however, Colvin J noted that in Qantas “Steward J at [116] referred to Shea and Whelan with approval as being correct in requiring the ability to make a complaint as expressed in s 341(c) to be ‘underpinned by some entitlement or right to do so’. However, this appears to be a minority view”.

File number(s):	SYG 1964 of 2021
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	25 June 2024
Catchwords:	INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed.
Legislation:	Fair Work Act 2009 (Cth) ss 12, 340(1), 341, 342(1), 351, 386(1), 550(2), 793(1) Workplace Relations Act 1996 (Cth) s 298K(1) Public Health Act 2010 (NSW) s 7 Work Health and Safety Act 2011 (NSW) s 12, Pt 5, Div 2
Cases cited:	Alam v National Australia Bank Limited [2021] FCAFC 178 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Childs v Metropolitan Transport Trust [1981] FCA 200 Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260 Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923 Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Division:	Fair Work
Number of paragraphs:	130
Date of last submission/s:	22 December 2022
Date of hearing:	14 and 15 November 2022
Place:	Sydney
Counsel for the Applicant:	Mr S Mueller
Solicitor for the Applicant:	Roberts Legal
Counsel for the Respondents:	Mr M Baroni
Solicitor for the Respondents:	Osborn Law

SYG 1964 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FINISI TOKI Applicant
AND:	ALL CLASS TRAINING PTY LIMITED ACN 143 355 604 First Respondent ANTHONY MEARRICK Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	25 JUNE 2024

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.