Wendy Robinson v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne - [2022] FWC 1614

[2022] FWC 1614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wendy Robinson and Others
v

Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne

(U2021/11943, U2021/11533, U2021/11912, U2021/11913, U2021/11916, U2021/11920, U2021/11921, U2021/11937, U2021/11938, U2021/11946, U2021/11951, U2021/12013, U2021/12041, U2021/3231)

COMMISSIONER BISSETT

MELBOURNE, 21 JULY 2022

Applications for an unfair dismissal remedy – failure to meet requirements of public health order – failure to comply with lawful and reasonable direction – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – applications dismissed.

The Fair Work Commission has received 14 applications pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which each of the Applicants seeks a remedy for unfair dismissal in relation to the termination of their individual employment by Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne (Metro Trains). For ease of reference the 14 Applicants will be referred to as the “Applicants”. Where reference to any individual Applicant is necessary they are individually named.

Each Applicant was dismissed from their employment on the grounds that they could not lawfully attend work and therefore could not fulfil the inherent requirements of their job, and had not taken steps to enable them to lawfully attend for work and, in this respect, failed to comply with a lawful and reasonable direction. The Applicants failed to provide Metro Trains with information about their vaccination status by the time required such that, by operation of Victorian Government Directions, they could not attend their workplace and none could perform their jobs from home. Further, the Applicants failed to ensure they could lawfully attend work.

Attachment A to this decision sets out for each Applicant the case number, name of the Applicant, date of termination and date of application to the Commission.

Each of the Applicants is represented by Mr Gareth Rogers of Reignite Democracy Australia except for Mr Zaher Mounla Khalil who represented himself. Metro Trains in each case is represented by Herbert Smith Freehills. I granted permission prior to the hearing for the 13 relevant Applicants and Metro Trains to be represented by a lawyer pursuant to s.596(2) of the FW Act.

It was agreed in case management conferences that each of the applications would be heard concurrently to the extent the applications deal with common issues (such as whether there was a valid reason for dismissal). Individual factual circumstances would be heard consecutively.

After hearing from the parties I determined that the matters should be dealt with by way of a formal hearing.

SUBMISSIONS AND EVIDENCE

A submission was filed on behalf of the Applicants with each Applicant also filing a witness statement. Mr Khalil separately filed submissions and a witness statement. Mr Jeffrey Foley and Mr Matthew Todorovski also made separate submissions.

To the extent that Mr Foley’s submission reflect those of the Applicants – save that certain dates and the title of the relevant health orders vary – my consideration of the matters raised applies equally to Mr Foley as to the other Applicants. While Mr Todorovski’s submissions are not specifically detailed below his submissions range across a number of matters that have been considered by me in reaching my conclusions.

Submissions were filed on behalf of Metro Trains. Mr Robert Duvel, Executive Director, Safety and People, with Metro Trains filed a witness statement.

None of the Applicants were required for cross-examination although Metro Trains made submissions as to the weight that should be afforded to the statements of various Applicants. This is dealt with below.

Mr Duvel was required for cross-examination by Mr Khalil.

PRELIMINARY MATTERS

Section 396 of the FW Act states that:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a)whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Metro Trains acknowledges, and I accept, that for the purposes of s.396 of the FW Act:

·It dismissed each of the Applicants within the meaning of s.386(1)(b) of the FW Act on the dates shown in Attachment A;

·Each Applicant was protected from unfair dismissal within the meaning of s.382 of the FW Act;

·Metro Trains is not a small business such that compliance with the Small Business Fair Dismissal Code is not relevant;

·The dismissals were not related to redundancy;
·The applications were each made within 21 days of the day the dismissals took effect;
·Each of the Applicants is covered by an Enterprise Agreement.

FACTUAL BACKGROUND

The following is taken from the statement of Mr Robert Duvel. It is not disputed by the Applicants and I adopt this as the factual background to the dismissal of the Applicants.[1]

Metro Trains operates the Melbourne metropolitan train network. Each of the Applicants, except for Mr Khalil, was employed either as a train driver or as a Station Officer (Mr Pope and Mr Todorovski). Mr Khalil was employed as a Structures Inspector which involves planning and safety, carrying out structures inspections and investigations. None of these roles could be performed from home.

On 1 October 2021 the Victorian Premier issued a media statement in which he outlined expanded requirements for workers to be vaccinated against COVID-19. The press release detailed that all specified authorised workers would be required to be vaccinated by 15 October 2021 in order to continue working onsite and would need to be fully vaccinated by 26 November 2021. Metro Trains’ employees were identified as “authorised workers”.

On 7 October 2021 the Victorian Acting Chief Health Officer (CHO) issued the COVID-19 Mandatory Vaccination (Workers) Directions (Directions).[2] The Directions imposed various obligations on Metro Trains including:

·a requirement for Metro Trains to collect, record and hold vaccination information in relation to employees who were or may be scheduled to work outside their ordinary place of residence; and
·that it would be unlawful for Metro Trains to allow its employees to work outside their normal place of residence after 15 October 2021 unless they had provided Metro Trains with vaccination information including that they had received one dose of an approved COVID-19 vaccine or met one of the exemptions.[3] (My emphasis)

The Directions applied to Metro Trains as the employer of workers specified in the Directions.

On 4 October 2021, following the Victorian Premier’s press release referred to above, Metro Trains issued an email to all of its employees referring to the Government announcement with respect to vaccinations and advising employees to upload their vaccination status to “MetroMe”, Metro Trains human resources information system, by 11 October 2021.

On 5 October 2021 Metro Trains provided a further update to its employees about the upcoming requirements. The update also attached a “Frequently Asked Questions” (FAQ) document.

On 8 October 2021 Metro Trains issued a further email to its employees including specific information about the Directions and advising that a more detailed FAQ would be sent to them on Monday (11 October 2021). Employees were also informed what would happen if they chose not to be vaccinated:

·They could apply for annual or long service leave which Metro will assess in light of operational requirements.
·Employees who were required to attend Metro Trains’ worksites to do their job in the ordinary course but who were absent from work would not be able to fulfil the inherent requirements of their role and this would likely cause operational difficulties.
·Information was available on Government websites including information on privacy matters.

Further iterations of the Directions were issued after 8 October 2021 but none of these altered the requirements for Metro Trains or its employees.

On 13 October 2021 Metro Trains sent an email to all employees reminding them of the need to register their vaccination status on MetroMe by no later than 5.00pm that day.

On 14 October 2021 Metro Trains sent an email to most of the Applicants who had not, by then, registered their vaccination status.[4] The email advised the Applicants that:

·They would not be able to attend for work on 15 October 2021 until they met the requirements of the Directions that enabled them to attend for work and would not be paid unless they were on approved leave.
·Metro Trains could not grant any further leave requests for operational reasons.
·Attendance at work was an inherent requirement of their role. For this reason it was likely Metro Trains would be unable to continue their employment.[5]

By the morning of 15 October 2021 Metro Trains had not received sufficient information that would permit attendance at work from:

·8.19% of train drivers.
·7.08% of station staff.
·18.5% of structure inspectors.[6]

On 29 October 2021 Metro Trains sent an email to each of the Applicants[7] who could not perform their work from home and were unable to attend work. The email contained a direction to the Applicants to upload their vaccination status to MetroMe by 5 November2021 and to be able to attend for work by 8 November 2021. The email advised the Applicants that it was unlikely Metro Trains would be able to maintain their employment if they were not vaccinated.[8] (My emphasis)

By this time Metro Trains was concerned at the operational impact of employee absences, particularly in light of statements made by the Premier of Victoria that there would be vaccine mandates through 2022 and possibly into 2023. Metro Trains reached a view that it could not operationally support the absence of staff who did not wish to be vaccinated for an extended period. Metro Trains needed to plan for how it would deliver on its operational requirements. It did not consider it practical to invest in recruitment and staff training when it had staff in the same categories on extended leave who, when they could return, would then create an excess staff situation.

On 19 November 2021 Metro Trains wrote to each employee[9] who had not complied with the direction issued on 29 October 2021. The letter advised each employee that Metro Trains had formed the view that it had no choice but to terminate their employment and invited each employee to provide any further information they wished Metro Trains to take into account.

Metro Trains considered the individual responses of each of the Applicants (although some did not respond) and Mr Duvel made the decision, on an individual basis to terminate the employment of each of the Applicants on 30 November 2021 except for Mr Foley. A decision was made by Mr Duvel to terminate Mr Foley’s employment on 21 February 2022.

On 30 November 2021 (and 21 February 2022 in the case of Mr Foley) Metro Trains issued a letter to each of the Applicants terminating their employment. Each of the Applicants was paid four or five weeks’ pay in lieu of notice in addition to accrued entitlements.

ASSESSMENT OF EVIDENCE

I accept the evidence of Mr Duvel as to the factual background as set out above.

I accept the evidence of Mr Duvel in relation to the working arrangements of Mr Khalil and accept Mr Khalil’s statement that his work involved preventative inspections of infrastructure.

I have further considered below the evidence of Mr Duvel and the statement of Mr Khalil as to the work he performed and if he could be considered under the exception provisions of the Directions.

Under cross-examination Mr Duvel gave evidence that Metro Trains did not mandate that employees could not attend for work if they were not vaccinated. Further, Metro Trains did not require employees to be vaccinated. Rather it was complying with the Directions issued by the Victorian Government in that it could not allow employees to attend the workplace unless they could show proof of vaccination.

I accept the evidence of the Applicants in relation to the industrial instrument that governed their employment and the financial and other impacts the termination has had on them.

Much of the evidence provided in the witness statements of the Applicants goes to their opinions and beliefs in relation to the law (of contracts and in relation to the Directions) and the obligations of Metro Trains in relation to compliance with the Directions. The Applicants’ evidence is, in this regard, of little probative value in resolving the matters before me. I accept the Applicants truly hold their views but this does not alter the factual matters I must take into account. I have, however, to the extent it is required, considered the matters raised by the Applicants in deciding if the dismissals were harsh, unjust or unreasonable.

Where there is a need to provide a detailed examination of the evidence I have done so below.

THE VALIDITY OF THE DIRECTIONS

The Applicants make a number of submissions as to the validity of the Directions. Each of these is dealt with below.

It is not the role of the Commission to determine the validity or lawfulness of the Directions. As was succinctly said in Roman v Mercy Hospitals Victoria Ltd[10] (Mercy Hospitals):

[28] …But as I observed in Stevens v Epworth Foundation[2022] FWC 593 at [26], the Directions have not been declared by a court to be invalid, and the Commission, which is an administrative tribunal, must carry out its functions according to law. It proceeds on the basis that legislation and delegated legislation is valid until a court says otherwise.

The correctness of this approach was affirmed on appeal by the Full Bench of the Commission[11] who said:

[26] …As earlier stated, the Deputy President proceeded on the basis he should treat the PHW Act, and the Directions made pursuant to that Act, as valid in the absence of any declaration of invalidity by a court. That is an approach that is supported by Commission authority in respect of other cases concerning dismissals connected with the PHW Act and the Directions.[12] It is also consistent with the well-established, indeed trite, proposition that the Commission, not being a court, cannot make any binding declaration about the validity of State or federal legislation. However, it may also be accepted that there is some support for the proposition that the Commission may form an opinion about issues of legislative validity if it is necessary in the performance of its statutory functions.[13]

For the reasons given in the initial decision in Mercy Hospitals and affirmed by the Full Bench I will proceed on the basis that the Directions are valid. For the sake of completeness I express my views as to the mattes raised by the Applicants.

The Directions and the Fair Work Act 2009

The Applicants (correctly) identify that s.26 of the FW Act sets out those circumstances in which the FW Act ousts the operation of State and Territory Industrial laws (s.27 of the FW Act then clarifying and setting out those exceptions as to where s.26 does not apply).

The Applicants submit that, had the Victorian Government passed a specific Act that regulated the workplace to the extent that a medical procedure was necessary in order to enter the workplace, such an Act would be contrary to the provisions of s.26(2)(b) of the FW Act. They submit therefore that the use of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) to achieve the same ends cannot circumvent s.26(2)(b) of the FW Act.

The Applicants submit that the main purpose to which the PHW Act is being put is “regulating the workplace and/or establishing terms and conditions of employment, by making it a requirement to undergo a highly dangerous, completely ineffective medical procedure in order to enter the workplace.”[14] Non-compliance with the Directions leading to termination of employment supports this submission.

The Applicants also submit that, while the PHW Act is not generally for the purpose of regulating the workplace, the manner in which it is being used is to regulate the workplace. Support for this can be found in clause 1 of the Directions.[15]

The Applicants also submit that s.27 of the FW Act specifically addresses situations of emergency and provides limited powers to the States in such circumstances. They submit that a direction to perform work in a particular way as contemplated by s.27(2)(k) of the FW Act may encompass social distancing but “requiring a medical procedure” in order to return to the workplace does not fall within such ambit.

Metro Trains makes three main submissions in relation to the proposition of the Applicants. First, it says that the Directions are not a State or Territory industrial law as defined in s.26(2) of the FW Act unless the PHW Act is a law as defined in s.26(2)(b) of the FW Act.[16] While the PHW Act is an Act of the State of Victoria it does not apply to employment generally and/or, to the extent it does, it does not have as its main purpose any of those matters in s.26(2)(b) of the FW Act. The PHW Act therefore is not excluded from operation by virtue of s.26(1) of the FW Act.

Secondly, Metro Trains says that even if the PHW Act is a State or Territory industrial law, to the extent it relates to workplace relations it does so as an occupational health and safety matter so that, by virtue of s.27(1)(c) and s.27(2)(c) of the FW Act, the PHW Act is a “non-excluded matter.”

Thirdly, even if the PHW Act is a State or Territory industrial law the Directions specify the way work is to be performed in a situation of emergency as they act to prohibit work outside the home unless specific requirements are met such that the Directions fall within s.27(2)(k) of the FW Act. That the COVID-19 situation is one in which the exception provided in s.27(2)(k) of the FW Act might apply, Metro Trains says it is supported by the Explanatory Memorandum to the Fair Work Bill 2009 (Explanatory Memorandum).

Consideration

I accept that the Directions are an instrument made under a law (the PHW Act).

For the Directions to be a State or Territory industrial law pursuant to s.26(2) of the FW Act the Directions must be “made under a law” as described in s.26(2) and be of legislative character (s.26(2)(g) of the FW Act).

It was not argued by the Applicants, and I accept, that the PHW Act is not a general State industrial law pursuant to s.26(2)(a) of the FW Act. The Applicants’ argument can therefore only succeed if the PHW Act is “an Act of a State or Territory that applies to employment generally” and has as its main purpose or one of its main purposes, one or more of the matters set out in s.26(2)(b) of the FW Act.

To the extent the Applicants rely on an argument that the primary purpose of the Directions is to regulate the workplace (s.26(2)(b)(i) of the FW Act) by mandating a requirement to be vaccinated to work, their submission must fail. This is clearly not the “main” purpose of the PHW Act. The “main purpose” of the PHW Act can be read in s.1 of the PHW Act. Section 1 of the PHW Act says that:

1 Purpose

The purpose of this Act is to enact a new legislative scheme which promotes and protects public health and wellbeing in Victoria.

The purpose of the PHW Act is expanded upon in s.4 of the PHW Act which states:

4 Objective

(1) The Parliament recognises that—

(a)the State has a significant role in promoting and protecting the public health and wellbeing of persons in Victoria;

(b)public health and wellbeing includes the absence of disease, illness, injury, disability or premature death and the collective state of public health and wellbeing;
(c)public health interventions are one of the ways in which the public health and wellbeing can be improved and inequalities reduced;
(d) where appropriate, the State has a role in assisting in responses to public health concerns of national and international significance.

(2)In the context of subsection (1), the objective of this Act is to achieve the highest attainable standard of public health and wellbeing by—

(a)protecting public health and preventing disease, illness, injury, disability or premature death;

(b) promoting conditions in which persons can be healthy;

(c) reducing inequalities in the state of public health and wellbeing.

(3)It is the intention of Parliament that in the administration of this Act and in seeking to achieve the objective of this Act, regard should be given to the guiding principles set out in sections 5 to 11A.

I am satisfied that the main purpose of the PHW Act is to promote and protect the public health and wellbeing of persons in Victoria. There is nothing in the PHW Act to support the assertion made that its main purpose or one of its main purposes is to regulate the workplace. Clearly its purpose is much broader than that. That it is possible by virtue of the PHW Act for the Government to issue the Directions does not alter the purpose of the PHW Act itself. The purpose of the PHW Act is not to regulate employment or the workplace even though, in carrying out its purpose, it may have some effect on workers. But the purpose of legislation and the specific effect of a health order (or area of influence) made pursuant to that legislation should not be confused or conflated.

I do not accept the submissions of the Applicants that, because the Directions have some effect in the workplace, this therefore means the PHW Act is a State or Territory industrial law for the purposes of s.26 of the FW Act. To accept this proposition would mean accepting that the PHW Act takes its purpose from the effect of the directions. The purpose of the PHW Act would therefore change depending on the directions issued. Such an approach to the determination of legislative purpose is not sound. The PHW Act has a purpose and that is articulated in s.1 of the PHW Act. It cannot change from day to day. Further, I do not accept that the PHW Act can take its purpose by an evaluation of whether the effect of the Directions could have been achieved in some other legislative manner. If this was true a substantial amount of legislation would fall within the purview of s.26 of the FW Act.

To the extent it may be argued that the PHW Act may be said to have some effect in the workplace it would appear on its face that such regulation would be for occupational health and safety purposes. The PHW Act would therefore be captured by s.27(2)(c) of the FW Act and is a State or Territory law not excluded by s.26 of the FW Act. To the extent the Applicants seek to argue otherwise their submissions must fail.

For completeness I accept the submissions of Metro Trains that the Direction made pursuant to the PHW Act is a direction as to perform work at a particular place or in a particular way and to not perform work in a particular place or in a particular way (s.27(2)(k) of the FW Act) in that employees could not perform work in the usual way unless they met the requirements otherwise set out in the Directions. I am satisfied that the Directions were issued in a situation of emergency – this being apparent from the declaration as to the State of Emergency.

Section 27(1)(c) of the FW Act states that s.26 of the FW Act does not apply to a law of a State or Territory where that law deals with a non-excluded matter. A non-excluded matter includes directions to perform or not perform work at a particular time or in a particular way in “situations of emergency” (s.27(2)(k) of FW Act). The Explanatory Memorandum says at paragraph 142, of this non-excluded matter:

·directions to perform work at any time, or in any place, or in a particular way, in relation to disruptions to essential services or in situations of emergency (such as pandemics or natural disasters) (Underlining added)

This suggests that, in making the FW Act the Parliament had squarely in mind that a pandemic could create an emergency situation. This submission was squarely put by Metro Trains in answer to the submissions of the Applicants but not further addressed by the Applicants.

To the extent that the Applicants otherwise seek some declaration as the interaction of the PHW Act and the FW Act that is a matter that should be dealt with in the appropriate court.

I do not consider that s.26 of the FW Act operates such that the Directions are excluded from operation in relation to the employment of the Applicants.

The Directions and the Privacy Act 1988

The Applicants submit that the collection of health information by Metro Trains is prohibited by the Privacy Act 1988 (Cth) (Privacy Act). In particular the Applicants submit that the Privacy Act prohibits the collection of health information unless a permitted health situation exists.

A permitted health situation is defined in s.16B of the Privacy Act as follows:

16BPermitted health situations in relation to the collection, use or disclosure of health information

Collection--provision of a health service

(1)A permitted health situation exists in relation to the collection by an organisation of health information about an individual if:

(a)the information is necessary to provide a health service to the individual; and

(b) either:

(i)the collection is required or authorised by or under an Australian law (other than this Act); or
(ii)the information is collected in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality which bind the organisation…

“health information” is defined in s.6FA of the Privacy Act as follows:

6FA Meaning of health information

The following information is health information:

(a) information or an opinion about:

(i)the health, including an illness, disability or injury, (at any time) of an individual; or
(ii)an individual's expressed wishes about the future provision of health services to the individual; or

(iii) a health service provided, or to be provided, to an individual;

that is also personal information;

(b)other personal information collected to provide, or in providing, a health service to an individual…

The Applicants submit that there is a prohibition on “requesting, recording and storing” health information of a person unless the request is being made for the purpose of providing a health service. The bases for collection provided in s.16B(1)(b) of the Privacy Act are not available where the requirements of s.16B(1)(a) are not met.

To the extent that previous decisions of the Commission (and courts) have considered the Australian Privacy Principles (APP) the Applicants submit those decisions are not binding as they have failed to consider s.16B of the Privacy Act.

To the extent the Directions issued by the Victorian Government are inconsistent with the Privacy Act, the Applicants submit that s.109 of the Australian Constitution makes the Directions invalid.

The Applicants submit that Metro Trains is not excluded from the operation of s.16B of the Privacy Act and, therefore, the request for “health information” (vaccination status) is unlawful.

Metro Trains says that it is an APP entity. It submits that the Privacy Act provides at s.16A for the collection, use or disclosure of personal information in a “permitted general situation” and, at s.16B, for the collection, use or disclosure of health information in a “permitted health situation”. Metro Trains says that s.16B(1) of the Privacy Act does not apply to Metro Trains as it applies to the provision of a health service and Metro Trains does not provide a health service. Submissions in relation to s.16B of the Privacy Act are therefore not relevant.

Section 16A of the Privacy Act describes the circumstances whereby a “permitted general situation” exists which allows for the collection, use or disclosure of personal information (which includes health information by virtue of the definition of “health information”). including at s.16A(1)(c), Item 1 where “it is unreasonable or impracticable to obtain the individual’s consent to the collection, use or disclosure” and “the entity believes that the collection…is necessary to less or prevent a serious threat to the life, health or safety of any individual or public health or safety.”

Metro Trains however says that all of this can be set aside because the APP specifically provides for the collection of sensitive information that is “required or authorised by or under an Australian law.” The Directions are a law and hence the collection of sensitive information is permitted.

Consideration

Part III of the Privacy Act deals with “Information privacy”. Division 1 of Part III deals with interferences with privacy and s.13 states that an act or practice of an APP entity is an “interference with the privacy of an individual” if that act or practice breaches the APP. It is therefore clear that that interference with the privacy of an individual will occur where the actions of the APP entity breach the APP.

Division 2 of Part III is in relation to the APP. Sections 15 – 16 of the Privacy Act are found in Div 2 of Part III. Section 15 says that an APP entity (Metro Trains is an APP entity) “must not do an act, or engage in a practice, that breaches the Australian Privacy Principle.”

The Australian Privacy Principles are in Schedule 1 of the Privacy Act.

“Australian Privacy Principles 3 – collection of solicited personal information” relevantly says as follows:
Personal information other than sensitive information
3.1 …

3.2If an APP entity is an organisation, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the entity’s functions or activities.

Sensitive information

3.3 An APP entity must not collect sensitive information about an individual unless:

(a)the individual consents to the collection of the information and:

(i)if the entity is an agency—the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities; or

(ii)if the entity is an organisation—the information is reasonably necessary for one or more of the entity’s functions or activities; or

(b)subclause 3.4 applies in relation to the information.

3.4 This subclause applies in relation to sensitive information about an individual if:

(a)the collection of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(b)a permitted general situation exists in relation to the collection of the information by the APP entity; or

(c)the APP entity is an organisation and a permitted health situation exists in relation to the collection of the information by the entity;…

APP clause 3.4(a) allows for the collection of sensitive information if “the collection of the information is required or authorised by or under an Australian law…”.

Sensitive information is defined in s.6 of the Privacy Act as including “health information”. Health information is also “personal information” (by virtue of s.6FA of the Privacy Act).

It is accepted that the Applicants do not agree to the collection of information in relation to their vaccination status (APP clause 3.3(a)). The collection of that information can not be a breach of the APP if APP clause 3.4 applies, that is, the collection is authorised by a law or a permitted general situation exists (a permitted health situation not being relevant).

I accept that the collection of the vaccination status of the Applicants is permitted pursuant to the Directions made in accordance with the PHW Act. On this basis alone it is apparent that the collection of the vaccination information by Metro Trains, as an APP entity, is not a breach of the APP. It is therefore not a breach of the Privacy Act and the request is therefore not contrary to the Privacy Act.

A review of the APP does not disclose that health information can only be collected in a “permitted health situation” as put by the Applicants. This is because health information is personal information (which can be collected in a permitted general situation) and is also sensitive information and APP clause 3.4 allows for the collection of sensitive information.

I do not consider s.16B of the Privacy Act to be of any assistance in this matter. Section 16B of the Privacy Act is a definition only. It does not provide assistance in determining if the actions taken by Metro Trains in accordance with the Directions have breached the Privacy Act.

For these reasons I do not consider that there is conflict between the Privacy Act and the requirement of the Directions that the Applicants disclose their individual vaccination status to Metro Trains.

The Directions and the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Applicants submit that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (CHRR Act) prohibits a person being subject to medical or scientific experimentation or treatment without their consent. Coercing an employee to undergo such treatment on threat of termination of employment is a contravention of s.10 of the CHRR Act. Such a requirement therefore is a breach of the law and could not satisfy a valid reason for dismissal.

Metro Trains submits that the CHRR Act applies to Parliament, courts and tribunals and “public authorities”[17] and that Metro Trains is none of these as it is a private company. Further, it submits that to the extent the Applicants seek a declaration that the Directions are inconsistent with the CHRR Act this is a matter for the Supreme Court.

Consideration

The submissions of the Applicants do not disclose the basis on which they claim Metro Trains is subject to the CHRR Act. Their claim in this respect is not made out.

The Directions and the Occupational Health and Safety Act 2004 (Vic)

The Applicants submit that the Occupational Health and Safety Act 2004 (Vic) (OHS Act) places a positive obligation on an employer to assess the risk placed on employees by new methods of work to be introduced, new materials to be used or products brought into the workplace. Requiring an employee to undertake an unnecessary or unwanted medical procedure would “obviously” be introducing risk into the workplace. Metro Trains did not take into account its obligations under OHS Act.

Metro Trains’ submissions in relation to any conflict between the Directions and OHS Act are that it was under no obligation to consult with employees in relation to vaccinations as it had not decided to implement a vaccination requirement (this being a decision of Government) but that it did provide the Applicants (and all employees) with extensive information in relation to the Directions, considered the views expressed by employees and responded to questions.

Consideration

It is not apparent to the Commission what is to be made of the applications in this respect. If the Applicants submit a breach of the OHS Act they have not expanded on cursory written submissions. To the extent they argue that a vaccination is an “unwanted or unnecessary medical procedure” that is not a matter for the Commission to decide. In any event the Commission notes that Metro Trains did not require the Applicants to undergo any medical procedure. Metro Trains required the Applicants to advise their vaccination status and, the Applicants not having done so, restricted the Applicants from access to the workplace in accordance with the Directions, made a decision as to the capacity of each Applicant to fulfil the inherent requirements of their positions and made management decisions from there as to future employment.

To the extent that it is a claim to consultation I am not satisfied that there was an obligation on Metro Trains to consult with its employees with respect to the Directions. The content or requirements of the Directions was not a matter over which Metro Trains had control. The Directions were issued by the Acting Chief Health Officer. The purpose of consultation – to allow employees to influence a decision of their employer – would achieve nothing. Metro Trains did not have the capacity to change what was required by Government. That the failure to consult should be taken into account is, in this respect, misplaced.

Due diligence before imposing the Directions on workers

Mr Khalil submits that Metro Trains should have assessed the Directions against existing commercial and workplace laws, human rights and equal opportunity laws and that it failed to do so. Mr Kahlil also says Metro Trains failed to fulfil ethical and legal obligations.

Mr Khalil also submits that the actions of Metro Trains in not allowing employees to attend the workplace amounted to bullying or “coercion”.

Consideration

I understand that Mr Khalil does not believe that Metro Trains should have abided by the Directions in requiring employees to be vaccinated in order to attend work. In this respect Mr Kahlil has put that Metro Trains should have advised the Victorian Government that the Directions were harsh in their effect on employees and that it did not intend to comply with the Directions.

The effect of the submission of Mr Kahlil is that Metro Trains should have acted contrary to its legal obligations. In putting such a submission Mr Kahlil does not seem to appreciate that the Directions are a law of the State of Victoria and Metro Trains was required, under the PHW Act to comply with the law. To not do so would have exposed Metro Trains to legal penalties.

Mr Kahlil’s submission, whilst heart-felt, does not amount to any legal obligation on Metro Trains to defy the provisions of the PHW Act (by ignoring the Directions). Metro Trains cannot be found to be at fault because it refused to breach the law.

Reliance on precedent

Mr Foley makes a submission that the Commission is not bound by the doctrine of precedent. Rather, he submits that the Commission should determine each application on the basis of the facts in that particular case. Mr Foley submits that the Commission should not be bound by previous decisions that have determined the Directions to be “laws” or cases on that question considered by various State Supreme Courts.

This submission is easily disposed of. In BRB Modular Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[18] (BRB Modular) the Full Bench of the Commission said:

[16] It is also of concern that the Commissioner expressly decided not to follow the earlier Full Bench authority. The Fair Work Commission is a tribunal and Full Bench decisions are not legally binding on single members in the way that lower courts are bound by decisions of higher courts. Nevertheless, the application of any body of law depends on consistency and respect for precedent. The High Court, for example will follow its earlier decisions, unless it is expressly decided by the Court, upon reconsideration and with all parties on notice that the earlier decision was wrongly decided and should be expressly overruled. The same practice has been adopted by Full Benches of this Commission and its predecessors. Adopting different interpretations of statutory provisions creates confusion to parties who are required to apply the statute and would mean that different approaches are adopted depending on the individual views of the particular members involved in a particular case. The orderly rule of law does not permit such an approach. Unless a previous case is distinguished or expressly overruled by a higher authority or on full reconsideration, it should be followed, especially when it involves the interpretation of statutory provisions. Full Bench interpretations should be followed by individual Commission members. The Commissioner was free to express his disagreement and his alternative reasoning. But having done so he should have applied the established Full Bench approach. Full Bench decisions may be wrong but the role of overruling vests with the higher Court.

The observations of the Full Bench as set out in BRB Modular are not a single observation – rather it is a position often repeated by Full Benches of the Commission and its predecessors as to how Commission members should deal with earlier Full Bench authority.

In Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School[19] (Roy-Chowdhury) the Full Bench of the Commission said:

[16] …The Appellant was dismissed because she was unable to lawfully perform her duties. As regards the other legislative provisions outlined by the Appellant in the Form F7, we consider the Deputy President dealt with the lawfulness of the Directions in an appropriate manner. The Directions have not been declared invalid by a court and the Commission, as an administrative tribunal, must carry out its functions according to law. [Footnote omitted]

On the basis of the authority in BRB Modular and in the absence of any submissions that suggest either Roy-Chowdhury or any of the predecessor decision to it were wrongly decided, I am satisfied that the Directions are lawful. Even if there was no Full Bench authority as to the lawfulness of the Directions, in the full knowledge of the extensive number of decisions of the Commission that have found the Directions to be lawful. In any event I am persuaded by the many decisions in relation to lawfulness of the Directions and the limitations on the Commission’s power. The Applicants’ submission in relation to “precedent” must be rejected. Having said this, novel arguments and the factual circumstances of each case must be properly considered.

WERE THE APPLICANTS UNFAIRLY DISMISSED?

Section 385 of the FW Act states that:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

Note:For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

I have found above in relation to ss.385(a), (c) and (d). It is therefore necessary for me to decide if the dismissals were harsh, unjust or unreasonable.

Whether a dismissal is harsh, unjust or unreasonable requires a consideration of those matters set out in s.387 of the FW Act. Section 387 of the FW Act states as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:

(a) the person sexually harasses another person; and

(b) the person does so in connection with the person’s employment.

Section 387(a) – whether there was a valid reason related to the person’s capacity or conduct

Each of the Applicants was dismissed from their employment because they could not lawfully attend the workplace and hence could not fulfil the inherent requirements of their position; and because they failed to comply with a direction from Metro Trains to be able to lawfully attend for work. The reason for dismissal was the same in each case and it is therefore reasonable to consider the question of “valid reason” once only.

In order for a reason to be valid the reason for the dismissal should be “sound, defensible or well founded”[20] and should not be “capricious, fanciful, spiteful or prejudiced.”[21] The reason for termination must be defensible or justified on an objective analysis of the facts in the case.[22] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[23]

Termination of employment on the grounds of capacity “encompasses situations where employees do not have or maintain the necessary licence, certification, approval or accreditation to lawfully perform the inherent requirements of their job.”[24] Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.[25]

The Full Bench of Fair Work Australia considered the operation of the incapacity provisions in s.387(a) of the FW Act in J Boag and Son Brewing Pty Ltd v Allan Button[26] (Boag and Son) and concluded as follows:

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4)of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal…

[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”… [Footnotes omitted]

Whether a direction given to an employee will be lawful and reasonable was considered most recently by the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[27] (Mt Arthur Coal) where the Full Bench made the following observations:

[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.

[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.

[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.

[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.

[72] Reasonableness is ‘a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment… [Footnotes omitted]

I have made a number of observations above that affect the question of whether there was a valid reason for dismissal that deal with matters of perceived conflict between the Directions and other legislation. There are, however, additional matters particular to employment with Metro Trains and the circumstances of this case that have been put forward by the Applicants as to why their dismissal was unfair.

While the submissions of the Applicants are very broad ranging I have, under s.387(a) of the FW Act, only considered the questions of lawfulness and reasonableness of the direction given to the Applicants to make themselves able to attend work lawfully and if the Applicants could fulfil the inherent requirements of their positions.

I have considered a range of matters that do not appear to impose on the question of valid reason under s.387(h) of the FW Act below.

Applicants’ submissions

The Applicants say they could continue to fulfil the inherent requirement of their positions and hence, they maintained capacity to do their jobs. As I comprehend the submissions of the Applicants, it is that:

·The Directions were due to expire on 15 December 2021, some 15 days after the dismissal of the Applicants;
·The Applicants had paid leave entitlements available to them or alternatively should have been asked if they wished to access leave without pay that would take them to 15 December 2021 (when the Directions expired);
·If the Applicants were required for work for operational reasons prior to 15 December 2021 they could have worked without being vaccinated pursuant to clause 6(2)(b) of the Directions;
·At the time the Applicants’ employment was terminated neither party could determine whether or not the “vaccine requirements” would be included in any future direction.

Given this sequence the Applicants appear to argue that they could continue to fulfil the inherent requirements of their job. That their employment was terminated on 30 November 2021 (and 25 February 2022 in the case of Mr Foley), they say is “objectively punitive” and could therefore not form a valid reason for dismissal.

The Applicants concede that an employer may give a lawful and reasonable direction and that an employee is obliged to obey such a direction. They submit that the test of whether a direction is lawful and reasonable is that if a command relates to the subject matter of the employment and involves no illegality it will be a lawful and reasonable direction. However, they rely on the inconsistency between the direction given to employees to disclose health information to Metro Trains and the Privacy Act to support their submission that the request to disclose health information (and hence the direction given to employees by Metro Trains to provide such information) is unlawful.

The Applicants therefore submit that the direction was not a lawful and reasonable direction and a failure to comply with the direction in such circumstances cannot provide a valid reason for dismissal.

Mr Khalil’s submissions

Mr Khalil submits that that he should have been granted an exemption pursuant to clause 6(2)(d) of the Directions. Clause 6(d) of the Directions provides an exemption from the requirement to provide vaccination information and a limitation on working outside the normal place of residence if the “worker is required to perform urgent and essential work…to protect assets and infrastructure”. As a Structures Inspector Mr Khalil submits that his work comes within the exception. He submits that his inspection work was proactive in that he protected assets.

Metro Trains’ submissions

Metro Trains submits that there are (at least) two valid reasons for the dismissal of each Applicant.

First, it says that each Applicant could no longer perform the inherent requirements of their job and, second that each failed to, or refused to, comply with a lawful and reasonable direction. Metro Trains says that there is now a “preponderance of Commission decisions confirming that an employee’s choice not to comply with the Directions…which results in them being unable to lawfully perform the inherent requirements of their role will likely give rise to a valid capacity related reason for their dismissal.”

Metro Trains submits that it had reasonably formed the view that the exception provided in the Directions was unlikely to be engaged in relation to the Applicants and that, even if it could be used, it could not justify retaining the Applicants in employment if they were otherwise unable to work.

Metro Trains also submits that there was a contractual requirement on the Applicants to comply with its lawful and reasonable commands. Metro Trains says that the question of reasonableness “does not involve an abstract or unconfined assessment as to the justice or merit of the decision.”[28] The question is whether the direction falls “within the scope of the contract of employment”.[29]

On 29 October 2021[30] the Applicants were issued with a written direction to ensure they could lawfully attend for work in accordance with the Directions by 8 November 2021. The direction issued to each employee was no more than they take the steps necessary to enable them to return to work. The Privacy Act did not prohibit the provision of the information sought from the Applicants. Further, the direction was reasonable with compliance necessary to enable the Applicants to each perform their role.

Conclusion as to valid reason

I have indicated above that my view that:

1. the Directions are not excluded by virtue of s.26 of the FW Act;

2.the requirement of the Directions that Metro Trains gather certain information in relation to vaccination status from employees is not inconsistent with the Privacy Act;
3.the CHRR Act does not apply to Metro Trains but, in any event, the Commission does not have the power to make a declaration with respect to the CHRR Act;
4.the requirement of Metro Trains that the Applicants provide their vaccination status and/or that they make themselves lawfully able to attend for work are not inconsistent with the OHS Act (to the extent the Applicants argued this point).

I accept that Metro Trains was required to comply by law with the Directions issued. Further, these Directions did have the force of law. For Metro Trains to ignore the requirements of the Directions and allow unvaccinated or non-exempt employees access to the workplace would have resulted in the potential prosecution of Metro Trains with associated reputational damage. To the extent that there were submissions or statements made to the contrary I have not had regard to these. As I observed above, the Commission is not the place to determine the lawfulness of the Directions.

Ability to fulfil the inherent requirements of the job

The Directions require Metro Trains to “collect, record and hold” vaccination information about its employees.[31] Metro Trains could not, after the relevant date (15 October 2021), permit an unvaccinated worker to work for it outside the worker’s ordinary place of residence.[32] Each of the Applicants failed to provide to Metro Trains valid evidence that they had been vaccinated (or had the relevant booking) or were otherwise exempt from the requirement to be vaccinated. Without evidence of vaccination, at the time their employment was terminated, the Applicants could not lawfully attend for work. Each of the Applicants was required to attend the workplace to carry out their respective duties and could not perform their duties at their usual place of residence (and none claimed otherwise).

That the Directions do not mention termination of employment of an employee for a failure to provide vaccination information to Metro Trains in accordance with the Directions is irrelevant. The assessment required by Metro Trains was whether, at the relevant time, the Applicants could fulfil the inherent requirements of their respective roles.

The Directions established a regulatory requirement that Metro Trains was required to comply with. It could not allow the Applicants to attend the workplace and maintain its legal obligations. Metro Trains did not require its employees to be vaccinated and did not issue such a direction. Rather, it required employees to be able to demonstrate that they could lawfully attend the workplace.

I do not accept that the Applicants can rely on the “exceptional circumstances” exception of the Directions that would have allowed them to attend for work in “an emergency” and that hence they could fulfil the inherent requirements of their positions.

The Directions exempt Metro Trains from the requirement to comply with clauses 4 and 5 (which relate to the collection of vaccination information and the requirement to ensure that an unvaccinated worker does not work outside their place of residence) if one of the exceptional circumstances specified in clause 6(2) of the Directions[33] is met.

The Applicants (except Mr Khalil) rely on the “emergency situation” exemption in clause 6(2)(b) of the Directions which provides that an exceptional circumstance is one where:

a worker is required to fill a vacancy to provide urgent care, to maintain quality of care and/or to continue essential operations due to an emergency situation or a critical unforeseen circumstance…

An “emergency situation” is defined in clause 10(6) of the Directions as relating to the need for urgent medical treatment. The Applicants do not fall within this limb of the exemption.

I accept the evidence of Mr Duvel that Metro Trains did not consider it would face a “critical unforeseen circumstance” such that it could require workers otherwise not lawfully able to attend work, to attend work. Mr Duvel says, and I accept, that Metro Trains was cognisant of the issues that may confront it in having fewer staff available to it and it could plan to meet demand while recruiting and training replacement staff.

As was determined in Boag and Son the assessment as to whether a person can fulfil the inherent requirements of their job is an assessment against the full requirements of the job. This by necessity is all of the jobs inherent tasks and for the time the person is usually employed. It is not that the person could perform some part of the job or the job on an irregular basis. This, however, is the basis of the argument of the Applicants – that they could fulfil the inherent requirements of their positions but only in “critical unforeseen circumstances”. I am satisfied that the Applicants did not fall within the “critical unforeseen circumstance” of the exemption and, in any event, this was not for them to decide.

In circumstances where the Applicants could not lawfully attend the workplace and where the jobs they were each required to perform could only be done in the workplace I am satisfied that none of the Applicants could meet the inherent requirements of their own job at the time their employment was terminated and that they therefore no longer had the capacity, at that time, to do their job.

The question as to whether it was reasonable that the Applicants be required to provide evidence of their vaccination status to Metro Trains to enable them to attend the workplace in circumstances where the Direction was only in operation for a further 15 days (until 15 December 2021) has little merit when the circumstances in which the Directions operated is objectively viewed. These were not Directions that arose at short notice, with no warning and that would not be extended. As Metro Trains points out the Directions with which the Applicants did not comply were the 8^th iteration of the Directions. The COVID-19 pandemic was well into its second year with substantial restrictions having being placed on working arrangements in many industries. Further, at that time the Applicants were dismissed the Victorian Government was steering through the Parliament legislation to allow for the further extension of the vaccine requirements.

While the decision to dismiss the Applicants when the Directions only had 15 days left to run may be argued as being premature, the assessment I need to make is if there was a valid reason for dismissal at the time of the dismissal. What may or may not have been after 15 December 2021 was not definitively known at the time of dismissal. It is apparent however that Metro Trains made its decisions in light of clear messaging from the Victorian Government. Metro Trains made a management decision based on all of the information available to them at that time. Viewed objectively it is difficult to find fault in the bases for the decisions made.

With respect to the submissions of Mr Khalil, Mr Duvel gave evidence, which I accept, that in the event of urgent or essential work a rapid response crew would be deployed to perform the urgent and essential work and Mr Khalil was not required to do such work. I accept that Mr Khalil was not the only Structures Inspector employed by Metro Trains such that other employees could not be deployed to undertake the work previously undertaken by Mr Khalil.

For the reasons given above in relation to other Applicants, I am not satisfied that Mr Khalil could fulfil the inherent requirements of his position.

That the Applicants could not fulfil the inherent requirements of their respective jobs presents a valid reason for dismissal in each case.

Lawful and reasonable direction

Metro Trains directed each of the Applicants (save a different date for Mr Todorovski and except for Mr Foley) that they were “required to be able to return to on-site work by Monday 8 November 2021. In order for Metro to be able to roster you shifts from this date, we require you to upload your vaccination information confirming your vaccination status to MetroMe by 5pm, Friday, 5 November 2021.”

I am satisfied that this was a lawful and reasonable direction given by Metro Trains to the Applicants. Save the issue of the interaction with the Privacy Act the Applicants did not make a submission otherwise. The Applicants say that the direction was unlawful because the request to provide their vaccination status was contrary to the Privacy Act. I have found otherwise above. I do not need to repeat what is set out above in relation to the Privacy Act here.

I am satisfied that the direction “falls within the scope of the employees employment” and that it involved no illegality. I am therefore satisfied that the direction was lawful and reasonable.

To the extent any Applicant was on or would be on approved leave on 8 November 2021 I do not consider this fatal to the assessment of the direction. The apparent deficiency in the direction could easily be rectified.

The Applicants each failed to comply with a reasonable and lawful direction. This too provides a valid reason for dismissal.

Conclusion

For the reasons given above I am satisfied that there was a valid reason for the dismissal of the Applicants – that they could no longer fulfil the inherent requirements of their position and that they each failed to comply with a lawful and reasonable direction of Metro Trains.

Sections 387(b) & (c) if the employees were advised of the reason for the dismissal and given an opportunity to respond

The Applicants do not say they were not advised of the reason for their dismissal nor that they were not given an opportunity to respond.

Mr Khalil submits that he provided a response to Metro Trains in which he expressed his concerns as to the infringement on his “human rights” and his “religious belief” and offered solutions that would have enabled his employment to continue but that Metro Trains was not willing to consider the points raised by him.

Mr Khalil put that he could have been given an exemption or that he could have been given tailored work to do from home or other roles that he could perform at home.[34] This was reiterated in his reply to Metro Trains’ letter of 19 November 2021.

Metro Trains’ submissions

Metro Trains submits that, at the earliest opportunity it started communicating with its workforce about what was required of them under the Directions and the potential impact of non-compliance.

By 13 October 2021 Metro Trains advised employees that it would be unlikely that their employment would continue if they remained unable to lawfully attend for work. On 14 October 2021 Metro Trains commenced correspondence with the Applicants individually.

On 29 October 2021 Metro Trains wrote to each Applicant and advised them that they were required to upload their vaccination information and be able to return to the worksite by 8 November 2021. This letter was clear that if they remained unable to attend the work site Metro Trains was unlikely to continue their employment (with Mr Foley being communicated with later).

On 19 November 2021Metro Trains again wrote to the Applicants advising each that Metro Trains had formed the view that it had no choice but to terminate their employment.

In this letter the Applicants were asked to provide any further information they wished Metro Trains to consider prior to a final decision being made.

Conclusion as to ss.387(b) and (c)

I have considered the evidence presented to the Commission in relation to the employee communications from Mr Raymond O’Flaherty on 11 October 2021[35] and 13 October 2021[36] in which employees were advised of the Directions, the obligations placed on Metro Trains and what was required of them. In the emails of 11 and 13 October 2021 Mr O’Flaherty said:

…If you do not provide this information, Metro is required to treat you as if you are unvaccinated. In that case, on and from 15 October 2021, Metro will be prohibited from allowing you to perform work outside your ordinary place of residence, and you are directed not to do so.

If, in your role, it is necessary for you to attend the workplace in order to perform your usual duties and you are unable to perform work outside your ordinary place of residence on and after 15 October 221, you will be unable to meet the requirements of your role. As such, you will not be paid from that time (unless you apply to use any accrued annual or long serve leave which Metro will assess in light of operational requirements)..

On or after 14 October each of the Applicants received a personal email from Mr Duvel[37] which said, in part:

You are receiving this email because you are employed in a role that is incapable of being performed from home, and our records indicate that you have not provided evidence [in relation to vaccination status] in the approved form…

For that reason, Metro is prohibited under the Directions from allowing you to attend for work from tomorrow, 15 October 2021, until such time as you meet the requirements of the Directions that enable you to attend for work…

It is important to understand that at the present time, there are more employees in your work group who are unable to attend for work under the Directions than we can operationally accommodate. Accordingly, it is not possible for Metro to approve any new requests for leave at this stage.

For that reason your absence from work will be unpaid for a period of at least 2 weeks, at which point we will reassess our operational capacity to support leave requests in light of the circumstances (unless you otherwise become able to return to work).

On Friday 29 October 2021 Mr Duvel sent a further personally addressed email to each of the Applicants.[38] The email read in part as follows:

To date, Metro has not required unvaccinated employees to return to work, and has endeavoured to support employees in this period by approving paid leave where this has been operationally possible. However, in a number of cases there have been more employees absent from work than could be accommodated, and leave has not been granted in those circumstances.

Unfortunately, the number of [Stations/Train Services/Infrastructure Operations] Staff who are unable to attend for work under the Government directions remains at a level we cannot sustain into the future.

As such, to continue serving the Victorian travelling public, we must take steps to have our employees return to work, or welcome new team members who can perform work across the network.

I am therefore writing to you today to let you know that you are now required to be able to return to on‐site work by Monday, 8 November 2021. In order for Metro to be able to roster you for shifts from this date, we require you to upload your vaccination information confirming your vaccination status to MetroMe by 5pm, Friday, 5 November 2021.

…

It is important that you be aware that if, at this time, you are unable to return to work, it is unlikely that we will be able to maintain your employment. In those circumstances we will have further discussions with you prior to making any final decisions…

On 19 November 2021 Mr Duvel sent a personal letter to each of the Applicants[39] which said in part:

On 29 October 2021, I wrote to you to inform you that:

·Metro is unable to sustain its operations if the level of absenteeism due to employees’ inability to attend for work under the Directions continued;
·you were required to upload your information confirming your vaccination status by Friday, 5 November 2021, and be able to return to on-site work from Monday, 8 November 2021; and

·if you remained unable to attend for on-site work, Metro was unlikely to be able to maintain your employment.

Unfortunately, you have not taken the steps that Metro required of you.

Metro must now take steps to enable it to sustainably meet its operational requirements into the future (noting that indications have been made by Victorian Premier Daniel Andrews that vaccination requirements are likely to continue well into 2022, and possibly 2023). This means having a workforce that is able to lawfully attend for work to perform the functions of their role.

Given that you have failed to take the steps Metro has required of you (as summarised above) that would allow you to return to work, Metro has formed the preliminary view that it has no choice but to terminate your employment as you are unable to perform the inherent requirements of your role and are unlikely to be able to do so for the foreseeable future.

Metro intends to make a final decision on the potential termination of your employment on 24 November 2021. I wish to provide you with a final opportunity to provide any further information you would like Metro to consider in making its decision (including for example, evidence that you have an imminent booking to receive an approved vaccine, or evidence in the required form of an exemption recognised by the Directions). This must be done by no than 23 November 2021, by email sent to me at[email address provided]…On 30 November 2021 Mr Duvel wrote to each of the Applicants[40] in which each was advised that their response (for those Applicants that provided a response) had been considered however it had not altered Metro Trains’ preliminary view (previously communicated to the Applicants) and their employment was terminated.

Following receipt and consideration of any reply from individual Applicants, a decision was then made to terminate the employment of the Applicants. Each received a letter to this effect.

I am satisfied, on the basis of the evidence before the Commission as detailed above, that each of the Applicants was advised of the reason for their dismissal and each was given an opportunity to respond prior to a final decision being taken.

Section 387(d) – unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

No meetings were held with the Applicants (it all being done by written correspondence). The Applicants were therefore not denied access to a support person in any meeting with Metro Trains and could have accessed any support they wished in responding to the correspondence to them by Metro Trains.

Section 387(e) – warnings of unsatisfactory performance

None of the Applicants was dismissed for unsatisfactory performance. This is therefore not a relevant consideration.

Mr Khalil made submissions that he had been subject to performance matters in the workplace and that this was a reason for his dismissal. I accept the evidence of Mr Duvel on this question that he did not consider any performance matters in relation to Mr Khalil’s employment when he determined that his employment should be terminated.

Sections 387(f) & (g) – was the size of the employer’s business and access to human resources expertise likely to impact on the procedures in relation to the dismissal

I am satisfied that Metro Trains is a large organisation with a well-equipped human resources team. Its procedures in relation to these matters before me appear sound, it approached the issues in a structured and professional manner as is to be expected.

Section 387(h) – other matters

A number of the Applicants filed witness statement where they have raised particular issues that they say make their dismissal otherwise harsh, unjust or unreasonable. I did not find any of these arguments compelling which is not to say I do not appreciate the hardship that has come to the Applicants by their dismissal. As has been observed by others, each of the Applicants had a choice to make and as with every choice there are consequences that must be lived with. That dismissal would follow a choice not to provide Metro Trains with the information required could not have come as a shock. This was signalled very early on as a possible outcome by Metro Trains and was reinforced in subsequent communications.

Metro Trains did pay notice to the employees it dismissed.

There are themes in the witness evidence of the Applicants which emerge on review. To the extent the Applicants put these forward as matters I should consider in determining their applications I have done so below.

I have considered the individual circumstances of each Applicant under these headings. I have only dealt here with matters not dealt with in other parts of this decision (for example alleged breaches of the Privacy Act). I acknowledge the material provided by each of the Applicants.

Save one of the Applicants who advised otherwise, at the time of hearing there is no evidence (or submission) that any of the Applicants could have been permitted under the existing Directions to lawfully attend the workplace any more than they could have lawfully attended the workplace at the time of their dismissals.

One Applicant seeks “determination and confirmation” from the Commission in relation to the decision in Kimber v Sapphire Coast Community Aged Care Ltd.[41] I have not taken that decision into account in reaching my decision. It is not a function of the Commission in determining if an employee has been unfairly dismissed to “determine and confirm” a decision of Full Bench. That decision has no bearing on the matter before me.

The Directions are only intended to operate in an “emergency”

The Applicants submit that the Directions were only ever intended to (and by virtue of the PHW Act can only) operate in an emergency situation and that did not exist at the time the Applicants were dismissed such that the Directions as issued by the Acting CHO were not lawful.

It appears that the Applicants wish to pursue a matter that is not within the responsibility or power of the Commission. If the Applicants consider that the provisions of the PHW Act were breached in the actions of the Victorian Government that is a matter for the Courts.

Access to leave

A number of the Applicants have said that they had paid accrued leave available and it would have been reasonable for Metro Trains to allow them to proceed on such leave (or leave without pay) and not terminate their employment. A number of Applicants had requested leave but this had been refused by Metro Trains.

Metro Trains submits that it did not have the operational capacity to allow the employees to take leave.

I accept that there were inherent difficulties for Metro Trains in allowing the Applicants who wished to take leave to do so for a number of reasons. Firstly, while Metro Trains did not know precisely how long the Directions would remain in force at the time it took the decision to dismiss the employees, the Victorian Government was progressing related legislative changes through the Parliament and the Victorian Premier had made it clear that vaccination requirements would most likely remain in force through 2022 and possibly longer. There was no indication that the requirements would be lifted (and they weren’t) on 15 December 2021.

Second, Metro Trains has a business to run. As a number of the Applicants correctly pointed out it takes time to train a replacement train driver. This has with it associated costs. The Applicants would have Metro Trains expend this cost and then, if and when the Applicants could return to work, Metro Trains would have excess staff that it would have to manage. Metro Trains has the right to make decisions as to how to deal with the need for staff on the job in the circumstances that existed at the time.

Third, if the Applicants were not replaced but put on leave other staff, who had complied with the requirements of Metro Trains, may be restricted from accessing their leave because of the operational limitations that affect the number of staff in various categories being absent at the same time.

Metro Trains did not reply to questions asked

A number of the Applicants claim that, in the period leading up to the termination of their employment, Metro Trains failed to respond to the questions they asked or, if a response was given it was vague and did not satisfy the needs of the questioner.

I accept the submissions of Metro Trains that it was not Metro Trains’ responsibility to provide definitive undertakings and/or medical and/or legal advice to the Applicants as to the efficacy of the vaccines, the Therapeutic Goods Administration approval processes, insurance cover, the interaction of the Directions with the Constitution, Biosecurity Act, the Nuremburg Code and so on. I am satisfied that Metro Trains provided as much information as it could reasonably provide within a relatively short period of time. Metro Trains correctly directed employees to various Government websites where they could access information in relation to the vaccines, Government approvals and other relevant material. Metro Trains also, correctly in my view, encouraged its employees to obtain their own professional advice on medical and legal matters they had raised. It was otherwise not reasonable of employees to expect that Metro Train could answer complex medical or legal questions or that it should. That individuals did not accept the information provided by Government is their choice and not something for which Metro Trains could reasonably be held responsible.

Unilateral alteration of employment conditions

Several of the Applicants complain that Metro Trains unilaterally altered their employment conditions from that contained in the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2019 (or other relevant enterprise agreement) or suggest that Metro Trains decision to terminate their employment was contrary to their agreement or contract of employment. I find no support for these propositions. Metro Trains has not altered the employment conditions of the Applicants. Metro Trains has done no more than comply with a requirement stipulated by the Victorian Government. Further, there are no provisions of the enterprise agreements or contract that stop an employer from terminating the employment of an employee.

Each of the Applicants (except those already on some approved leave) was placed on leave without pay on or about 15 October 2021. I accept that none of them sought that outcome but I am satisfied they could not be at work and were unable to work at that time because of the Directions. The Applicants were, at that time, not ready, willing and able for work. While some filed a statutory declaration stating they were and remain ready, willing and able to work this is not the case.

Some Applicants suggest that Metro Trains altered their employment without consent and they should therefore be offered redeployment or redundancy. There is no evidence that jobs have been changed, with or without consent. This is not an argument that carries any weight. Metro Trains had work that it required to be done. The Applicants who suggest this as an outcome did not maintain themselves in such a manner that they could attend work.

That the enterprise agreements do not contain any provisions requiring vaccination is not determinative of this matter. That does not invalidate or make unlawful the Directions with which Metro Trains was required to comply.

Discrimination

A number of the Applicants claimed in their statement that they have been discriminated against as it goes against their religious or other beliefs to have to be vaccinated. Metro Trains did not require and did not direct anyone to be vaccinated. What Metro Trains did was advise its employees that, if they were not compliant with the Directions and if they were not vaccinated they were not able to lawfully attend work and would be unable to fulfil the requirements of their jobs.

Claims of discrimination are not matters that have been any further explored or on which any evidence has been given.

Notification of dismissal

I acknowledge that the Applicants were advised of their dismissal from employment via letter delivered by email. Some Applicants have suggested that this invalidates the termination of employment.

I accept that, in most circumstances, notification of termination of employment should be conducted in person. In the circumstances of these cases I am not satisfied that this makes the dismissals harsh, unjust or unreasonable. The Applicants were aware of their circumstances, had received extensive correspondence from Metro Trains and were each afforded procedural fairness. Further, the environment within which everyone was operating were constrained and Metro Trains was dealing with multiple dismissals.

CONCLUSION

Having considered all of the matters as required pursuant to s.387 of the FW Act I am not satisfied that any of the dismissals was harsh, unjust or unreasonable.

I am satisfied that there was a valid reason for the dismissal of each of the Applicants. The reason was “sound, defensible and well founded” in each case. Further, the Applicants were afforded procedural fairness. The individual witness statements and circumstances of the Applicants do not provide any counterweight to these two critical matters (all other matters being neutral in my considerations).

Not being satisfied the dismissals were harsh, unjust or unreasonable, I am not satisfied that any of the Applicants was unfairly dismissed. Each of the applications for a remedy for unfair dismissal is therefore dismissed. An order[42] to this effect will be issued shortly.

COMMISSIONER

Appearances:

Z. Khalil on his own behalf.

G. Rogers for the Applicants.

B. Popple for Metro Trains Melbourne Pty Ltd T/A Metro Trains.

Hearing details:

2022.
Melbourne by Microsoft Teams Video
June 21.

ATTACHMENT A

Matter Number:	Party Details:	Date of Dismissal	Date Application made to the Commission
U2021/11943	Wendy Robinson v Metro Trains Melbourne Pty Ltd T/A Metro Trains	30 November 2021	20 December 2021
U2021/11533	Matthew Todorovski v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	13 December 2021
U2021/11912	Daniel Woznikiewicz v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11913	Andrew Terkely v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11916	Joshua Panettieri v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11920	Stephanie Fernandes v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11921	Darren Adams v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11937	Danielle Arcaro v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/11938	Marinko Jezabek v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2021/12041	Justin Bryant v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	21 December 2021
U2021/11946	Geoffrey Christopher Pope v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	21 December 2021
U2021/11951	Robert Baldacchino v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	21 December 2021
U2021/12013	Zaher Mounla Khalill v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	30 November 2021	20 December 2021
U2022/3231	Jeffrey Foley v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne	25 February 2022	16 March 2022

[1] To the extent that Mr Foley, one of the Applicants, was dismissed in February 2022, the date he received correspondence and the Directions which applied to him varied in some respects but not in substance. Where a date is important I have identified the dates as they applied to various individuals. To the extent individual matters in relation to Mr Foley require separate attention I have identified the matter

[2] Witness statement of Robert Duvel, Annexure RD-4

[3] Directions clause 5

[4] Employees who were on leave at this time received the email at or around the time their leave was due to end (Mr Panettieri and Ms Arcaro received the email on 22 October 2021 and Ms Fernandes on 25 October 2021). Mr Pope, Mr Todorovski and Mr Woznikiewicz did not receive this email.

[5] Witness statement of Robert Duvel, Annexure RD-9

[6] Witness statement of Robert Duvel, paragraph 39

[7] Mr Woznikiewicz was sent the email on 3 November 2021 and Mr Foley on 4 February 2022

[8] Witness statement of Robert Duvel, Annexure RD-10

[9] Mr Foley received a letter in the same terms on 21 February 2022

[10] [2022] FWC 711

[11] Roman v Mercy Hospitals Victoria Ltd[2022] FWCFB 112

[12] See e.g. Roy-Chowdhury v Ivanhoe Girls Grammar School [2022] FWCFB 101 at [16]

[13] See, for example, Re Boulton; Ex parte CFMEU (1998) 73 ALJR 129 at [21]; Precision Data Holdings Ltd v Wills [1991] HCA 58, 173 CLR 167 at 189; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, 255 CLR 352 at [33]; Attorney-General (Cth) v Breckler [1999] HCA 28, 197 CLR 83 at [87]

[14] Applicants’ submission filed on 19 April 2022, paragraph 10

[15] Clause 1 of the Directions states that “The purpose of these directions is to impose obligations upon employers in relation to the vaccination of workers, in order to limit the spread of…(SARS-CoV-2) within the population of those workers.”

[16] Section 26(2)(g) of the Fair Work Act 2009 includes in the definition of a Sate or Territory industrial law “an instrument made under a law” described in ss.26(2)(a)-(f) so far as it is “of a legislative character”. The Directions are an instrument made under the PHW Act

[17] Section 6(2) CHRR Act

[18] [2015] FWCFB 1440

[19] [2022] FWCFB 101

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

[21] Ibid

[22] Rode v Burwood Mitsubishi Print R4471

[23] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685

[24] See Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [42] cited in DA v Baptist Care SA [2020] FWCFB 6046 at [28]

[25] Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243 at [37] cited in DA v Baptist Care SA [2020] FWCFB 6046

[26] [2010] FWAFB 4022

[27] [2021] FWCFB 6059

[28] Briggs v AWH Pty Ltd (2013) 231 IR 159 at [8]

[29] See Roman v Mercy Hospitals Victoria Ltd[2022] FWC 711 at [30]

[30] 3 November 2021 in the case of Mr Woznikiewicz and 4 February 2022 for Mr Foley. Mr Foley was advised that he should lawfully attend for work in accordance with the Directions by 13 February 2022

[31] Directions clause 4

[32] Directions clause 5(1)

[33] The Applicants, in their submissions, refer to clause 7(2) but the Directions have the exceptions at clause 6

[34] Witness statement of Mr Duvel, Annexure RD-25, email from Mr Khalil to Zac Elsworthy and Patrick Raymond of 13 October 2021

[35] Witness statement of Robert Duvel, Annexure RD-7

[36] Witness statement of Robert Duvel, Annexure RD-8

[37] Witness statement of Robert Duvel, Annexure RD-9. Ms Arcaro and Mr Panettieri received the email on 22 October 2022 and Ms Fernandes received it on 25 October 2021. Mr Foley did not receive this or a similar email

[38] Witness statement of Robert Duvel annexure RD-10. Mr Woznikiewicz received the email on 3 November 2021 and Mr Foley received essentially the same correspondence but by letter on 4 February 2022

[39] Witness statement of Robert Duvel annexure RD-12. Mr Foley received the equivalent letter on 21 February 2022 with appropriately amended compliance dates

[40] Witness statement of Robert Duvel, Annexure RD-28. Mr Foley received his letter on 25 February 2022

[41] [2021] FWCFB 6015

[42] PR743001

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