Wolfraad v Serco Australia Pty Limited
[2022] FedCFamC2G 1063
Federal Circuit and Family Court of Australia
(DIVISION 2)
Wolfraad v Serco Australia Pty Limited [2022] FedCFamC2G 1063
File number(s): SYG 302 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 21 December 2022 Catchwords: INDUSTRIAL LAW – adverse action – discrimination – inherent requirements of particular position. Legislation: Fair Work Act 2009 (Cth) ss 340, 342, 351, 361
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 21A
Work Health and Safety Act 2011 (NSW)
Industrial Relations Act 1988 (Cth) s 170DF(1)
Cases cited: Hodkinson v Commonwealth (2011) 248 FLR 409
Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424
Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754
Jain v Special Broadcasting Service Corporation [2022] FedCFamC2G 814
X v Commonwealth (1999) 200 CLR 177
Qantas Airways Ltd v Christie (1998) 193 CLR 280
Division: General Number of paragraphs: 69 Date of hearing: 29 November 2022 Place: Sydney Counsel for the Applicant: Mr M. Mando Counsel for the Respondent: Mr J. Fernon SC Solicitor for the Respondent: Baker & Mckenzie ORDERS
SYG 302 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK JOHN WOLFRAAD
Applicant
AND: SERCO AUSTRALIA PTY LIMITED (ACN 003 677 352)
Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The application be 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
Judge Cameron
Introduction
From 7 October 2014 to 18 November 2021 the applicant, Mr Wolfraad, was employed by the respondent, Serco Australia Pty Limited (“Serco”), first as a casual client services officer and then as a full-time Detainee Services Officer (“DSO”) at Villawood Immigration Detention Centre (“VIDC”). On 28 February 2022 he filed an originating application alleging that in contravention of s.351 of the Fair Work Act 2009 (Cth) (“FW Act”), he had been discriminated against due to a physical disability or perceived physical disability and because of his political opinion. Mr Wolfraad alleged that Serco’s coronavirus disease 2019 (“COVID-19”) vaccination policy was unreasonable and that the threat of, and the carrying out of, his termination due to non-compliance with the policy was adverse action taken against him. Mr Wolfraad’s application sought compensation and reinstatement.
Serco denied that Mr Wolfraad had been discriminated against because of any physical disability or perceived physical disability and political opinion. It alleged that any action taken by Serco was because Mr Wolfraad could not meet the inherent requirements of his role as a DSO at VIDC without providing evidence that he had received his first vaccination against COVID-19 by 31 October 2021. Serco denied that the termination of Mr Wolfraad’s employment was adverse action or a breach of the general protection provisions of the FW Act.
For the reasons that follow, the application will be dismissed.
applicant’s Pleadings
Mr Wolfraad alleged he had been dismissed from his employment at Serco because of his COVID-19 vaccination status. In full, his pleaded allegations were:
(A) The employer ("Serco") has discriminated against the employee based on the employee's vaccination status being unvaccinated regarding COVID-19 and taken adverse action against the employee by terminating his employment as a consequence of such discrimination. This discrimination is in breach of s. 351 of the Act as it has arisen because of:
(1) Physical Disability or Perceived Physical Disability in the employee being unvaccinated against COVID-19 (or, alternatively, perceived Physical Disability to the extent that it is speculated by Serco that the employee MAY have some kind of disease, such as COVID-19, because he is unvaccinated); and/ or
(2) Political Opinion - due to the employee's expression of opposition against the policies of mandatory vaccination for COVID-19, which Serco was seeking to impose/ implement at the relevant time.
(B) Serco’s termination of the employee on the basis of unvaccinated status was discriminatory - and it was discriminatory as a general policy of discrimination against all those employees who had such unvaccinated status - as it was an unreasonable policy requiring compliance with an unreasonable requirement of injection with the COVID-19 vaccine.
(C) Such a requirement was unreasonable because the COVID-19 vaccine would not prevent infection with the COVID-19 virus, nor would it prevent transmission of the COVID-19 virus once a vaccinated individual was infected.
(D) The threat of, and carrying out of the termination of employment of the employee due to his non-compliance with the said unreasonable requirement of COVID-19 vaccination was unreasonable, harsh and oppressive adverse action against the employee by Serco.
Respondent’s Pleadings
In its response dated 22 March 2022 Serco denied the allegations of discrimination. It also denied the allegations that the termination of Mr Wolfraad’s employment or the threat of termination was adverse action or contravened the general protection provisions of the FW Act.
Serco also alleged that:
… the Applicant could not and did not meet the inherent requirements of his role as a Detention Service Officer at Villawood Detention Centre in that he refused to provide evidence of having received his first vaccination for COVID-19 by 31 October 2021 and that any action taken by the Respondent was because of the inherent requirements of the Applicant's position.
Serco alleged that the policy it adopted to address the threat of COVID-19 was non-discriminatory and reasonable in the circumstances.
Legislation
Fair Work Act
Sections 340, 342, 351 and 361 of the FW Act relevantly provide:
...
340 Protection
(1) 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.
...
342 Meaning of adverse action
(1)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.
...
(2) Adverse action includes:
(a)threatening to take action covered by the table in subsection (1); and
(b) organising such action.
...
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti‑Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti‑Discrimination Act of the Northern Territory.
...
361 Reason for action to be presumed unless proved otherwise
(1) 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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Disability Discrimination Act
The Disability Discrimination Act 1992 (Cth) (“DD Act”) relevantly provides:
4 Interpretation
…
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
…
(k) is imputed to a person.
…
5 Direct disability discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
…
6 Indirect disability discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b)because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
…
(3)Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
…
21A Exception—inherent requirements
Inherent requirements
(1)This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discrimination relates to particular work (including promotion or transfer to particular work); and
(b)because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
…
Applicant’s Evidence
Mark Wolfraad
Mr Wolfraad deposed that on 7 October 2014 he had been employed by Serco Australia as a casual Client Services Officer at VIDC and then on 27 July 2015 as a permanent full time DSO and an Emergency Response Officer. A copy of a document dated 14 July 2015 entitled “Offer of employment – Detainee Services Officer” read in part as follows:
…
10. Company Policies
You will be bound by the employment policies and procedures adopted by the Company from time to time, including but not limited to policies dealing with the Code of Conduct, Bribery and Corruption and Work Health and Safety.
You will be required to ensure that you are familiar with these policies and procedures. You acknowledge and agree that the terms of such policies and procedures are not incorporated as terms of this Agreement and are not intended to have contractual effect.
11. Work Health and Safety
(a) You will be required to comply with the relevant health and safety legislation, regulations and policies by which the Company is bound and/or has established.
…
(d) You may also be required to have a medical examination(s) during your employment that will include testing for drug and alcohol levels; in accordance with the Company's Work, Health and Safety policies.
…
13.Termination with notice
Unless your employment is terminated during the probationary period under clause 5, or your employment is terminated without notice under clause 15, your employment and this Agreement may be terminated at any time by the Company:
(a) giving you notice as set out in the Instrument or the Fair Work Act 2009 (Cth) ("FW Act") (whichever is the greater);
…
15.Termination without notice
Your employment and this Agreement may be terminated by the Company giving you notice in writing effectively immediately if you at any time engage in serious misconduct.
…
Employment Duties
Mr Wolfraad deposed that his duties had included:
(a)internal and external permitter patrols of the compounds within the general population section and High Security complex;
(b)alarm checks;
(c)detainee welfare checks;
(d)dispensing of medicine at the medical centre;
(e)being on standby for any emergency response calls;
(f)room and person searches to locate and seize contraband items such as weapons or escape tools;
(g)attending, assessing and assisting where possible in various emergencies and urgent situations, including fires, medical emergencies, assaults, disturbances, escape from lawful detention, riots, assaults on staff;
(h)transport and escort of detainees offsite to various locations around Sydney, within Australia or Australian territories e.g. hearings, doctors, pickups, transfer to other detention centres;
(i)participation in international assignments e.g. removal of detainees from Australia; and
(j)complying with random drug and alcohol testing.
Vaccination Status
Mr Wolfraad deposed that because of an earlier adverse reaction to a vaccine, on 15 September 2021 he spoke to his general practitioner, Dr Anderson, to determine if a COVID-19 vaccine was safe and viable for his use. Dr Anderson did not give him a vaccination exemption.
Alleged discrimination
On 21 August 2021 Mr Wolfraad discussed his COVID vaccination status with the Facility Operations Manager, Elisabeth McNamara, and told her that it was private information between him and his doctor. Mr Wolfraad deposed that Ms McNamara asked if that meant he was unvaccinated, as she needed to inform Wayne Nugent, Senior Manager. On 3 October 2021, Mr Wolfraad responded to a query from Ms McNamara concerning his failure to complete the vaccine status column of the staff register by saying that it was a private matter. Mr Wolfraad deposed that Ms McNamara told him that the matter had been sent “to the top” i.e. to senior management.
On 8 October 2021, Mr Wolfraad received his copy of an all staff email from Shannon Warrian Johnstone, Residential Manager of VIDC, which stated that although restrictions were easing in the community, COVID-19 practices and restrictions would remain in place at VIDC. That day he also received a phone call from Mr Nugent who said to him:
You have been stood down from work and will be unable to attend work until you have provided evidence of Covid-19 vaccination.
On 10 October 2021 Mr Wolfraad sent Ms McNamara an email advising her of his conversation with Mr Nugent and that he had been stood down from work until further notice.
Mr Wolfraad’s evidence was that he received an email from Don Taylor, General Manager of Serco, on 10 October 2021 which read in part:
… staff living in areas not identified Local Government areas of concern who are unvaccinated and have previously been eligible to attend VIDC will no longer be eligible. This is a strategy implemented to ensure the ongoing safety of staff, detainees and stakeholders is maintained as effectively as practicable.
For clarification, effective Monday 11th October NO UNVACCINATED STAFF will be eligible to attend shifts at VIDC, APOD and/or conduct any escort or associated tasks.
Mr Wolfraad’s evidence was that on 14 October 2021 he received an email from Mr Taylor which read in part as follows:
... from Monday 11th of October 2021, all staff who work on site at VIDC must have received at least one dose of a COVID-19 vaccine and have provided Serco with satisfactory evidence of their vaccination status in order to continue attending the workplace.
Serco's records indicate that you have not yet received a COVID-19 Vaccination. In accordance with VIDC's Covid-19 Risk Assessment, you are not permitted to attend work at VIDC until further notice.
...
If you do intend to receive a COVID-19 vaccination:
Serco expects that you will have received your first COVID-19 vaccination and provided satisfactory evidence of your vaccination as soon as possible and by no later than 4pm on Monday 18 October 2021.
…
If you have a medical exemption:
You are required to provide evidence of your medical exemption by providing to Serco a completed copy of the approved NSW Government COVID-19 Vaccine Medical Contraindication form (completed by a registered medical practitioner) by email … by no later than 4pm on Monday 18 October 2021 …
If you do not intend to receive a COVID-19 vaccine:
Serco requires you to notify a VIDC Senior Manager … by email as soon as possible and by no later than 4pm on Monday 18 October 2021 if you do not intend to receive a COVID-19 vaccination. If you have not indicated your intentions to be vaccinated by this deadline, Serco will proceed on the basis that you do not intend to be vaccinated.
In these circumstances, Serco will need to consider your ongoing employment.
Other Potential Employment Opportunities:
Serco may be able to assist you to identify and apply for other opportunities within Serco in roles which do not require vaccination. Specifically, there may be opportunities in Citizen Services in the contact centres which are designated work from home roles.
… (emphasis added)
Mr Wolfraad deposed that on 18 October 2021 he sent an email to Mr Taylor asking him to provide a vaccination risk assessment for his work area and stating that he was “ready, willing and able to work in [his] role and ... in good health and fitness”. Mr Wolfraad deposed that on 25 October 2021 he received a letter stating that a risk assessment had been completed by Serco. Mr Wolfraad was supplied with a copy of that risk assessment on 8 November 2021.
Mr Wolfraad’s evidence was that on 5 November 2021 he received a further email from Mr Taylor stating that Serco was considering terminating his employment because of his failure to comply with its COVID-19 Policy, which Mr Taylor stated was an inherent requirement of his role as DSO. On 8 November 2021 he received an email sent by Mr Taylor to all VIDC staff which reiterated that all workers had to receive at least one dose of a COVID-19 vaccine by 31 October 2021 and which read in part as follows:
…
Serco appreciates that there may be workers who choose not to be vaccinated however as it has been determined that vaccination is now an inherent requirement of your role and a control measure against the risk of COVID-19 transmission, employees who are not vaccinated will not be able to attend VIDC in any capacity.
…
We understand that vaccination status is sensitive health information under the Privacy Act 1988 (Cth) and confirm that we will treat it with the utmost sensitivity. This means we will take all reasonable steps to protect this information from misuse, interference and loss, as well as unauthorised access, modification or disclosure including limiting access to it within Serco to only those who have a specific need to access it to do their job.
…
Mr Wolfraad agreed that Serco’s position that staff at VIDC had to receive a first dose of a COVID-19 vaccine by 31 October 2021 had been based upon the risk assessment it had conducted.
Mr Wolfraad deposed that on 9 November 2021 he sent an email to Serco in which he sought an extension of time to consider its proposals, to consult with his union regarding the risk assessment and alternative roles, and to attend a medical appointment to discuss his concerns with a doctor. On 12 November 2021 he received an email from Mr Taylor giving him until 17 November 2021 to provide further information for Serco’s consideration before a decision was made in relation to his termination.
Mr Wolfraad’s evidence was that on 12 November 2021 he sent an email to Mr Taylor and Neha Chandra, Human Resources Representative, in which, inter alia, he outlined his safety concerns and points he wished to discuss with Serco. On 15 November 2021 he sent a further email to Mr Taylor, complaining that the copy of risk assessment he had been given was largely illegible. He also stated that he believed Serco’s actions to be unconscionable, that its threats of termination placed employees under duress and that his human rights were being breached.
Political opinion and reasoning
Mr Wolfraad deposed that on 18 November 2021 he sent a group email to approximately 200 recipients, including the group CEO for Serco UK and Europe, stating that he had genuine concerns about the safety of the COVID-19 vaccines and that Serco’s requirement that all staff be vaccinated, or in default dismissed, constituted duress and removed employees’ voluntary consent. He stated that as an act of “political protest” at Serco’s actions towards staff, he had renounced a Serco award he had received in 2018.
Termination
Mr Wolfraad’s evidence was that on 19 November 2021 he received a termination notice from Serco that read in part:
...
Having considered all of the correspondence including your response to the Show Cause letter dated 5 November 2021, I am satisfied you have not provided:
1.any relevant medical (or other) information sufficient to warrant Serco granting you an exemption from vaccination;
2.any evidence to Serco that you have (or intend to) make arrangements to receive a COVID-19 vaccination. This is despite multiple directions and an extension of time following the Show Cause correspondence to allow you to demonstrate compliance; and/or
3.any information sufficient to warrant further dialogue or consideration in respect of your ongoing employment.
In your correspondence dated 18 November 2021, you state that Serco's direction is discriminatory. For completeness, I note you have not submitted a Request for Exemption Form, as required under the COVID-19 Policy, nor have you provided any medical evidence in support of a valid exemption request, despite being given every opportunity to do so.
Finally, I am aware that on 12 November 2021, you received correspondence in relation to potential alternate roles within Serco, namely casual roles available in the Contact Call Centre for Services Australia or the NDIA Team. That correspondence contained a requirement to communicate your interest, if any, by no later than 15 November 2021. Serco did not receive any expression of interest from you.
As at today's date, you remain in breach of the Direction and are not compliant with the Policy. On the basis of your failure to comply with the Direction and the COVID-19 Policy you are unable to perform the inherent requirements of your role. Accordingly, your employment is terminated effective from today, 19 November 2021.
...
Respondent’s Evidence
Don Taylor
Mr Taylor is employed by Serco Australia as the General Manager of VIDC and deposed that he is responsible for its day-to-day management and operation, the safety and security of all persons at the detention centre, and all transport and escort tasks originating from it.
Mr Taylor deposed that VIDC houses approximately 520 immigration detainees, and that DSOs have direct and frequent contact with detainees and are primarily responsible for maintaining the safety and security of the centre.
Detention Service Officers
Mr Taylor deposed that Mr Wolfraad commenced as a DSO in 2015 and that the position description for that role was set out in the Serco Immigration Services Agreement 2021 (“Enterprise Agreement”) relevantly as follows:
15. Job classifications – Detention Service Employees
Detention Service Officers
(a) Detention Service Officer (DSO 1) - Upon commencement of employment, a Detention Service Officer at this Level will be undertaking training towards a Certificate III in Immigration Detention Operations and Certificate III In Correctional Practice qualification or equivalent qualification.
(i) A Detention Service Officer at this Level will complete all duties and responsibilities that are within his or her level of competence and training. This can include performance of some of the duties of an Accredited Detention Service Officer (DSO 2) under supervision. The degree of supervision required will be determined by the levels of on the job experience/competence or other accredited and relevant training completed.
(ii) A Detention Service Officer (DSO 1) is responsible for ensuring the Detainees are in a safe, secure and hygienic environment. He or she assists in maintaining the static and dynamic security of the Centre. The duties at this Level may include escorting Detainees to courts and medical or other appointments, driving duties, and like duties provided that for the first 6 months of employment, such duties are performed with an Accredited Detention Service Officer (DSO 2) or the Employee concerned has completed the relevant training and been deemed competent to complete the task(s).
…
Mr Taylor deposed that Serco had a “Success Profile” setting out the key requirements, necessary training and attributes for each position. For the DSO position, the “key accountabilities” included:
...
5.Demonstrates awareness of and complies with company policies, procedures, rules and orders; relevant legislation, and maintains safety and security for all who work and live within the detention environment. E.g: undertake searches; supervise entry and exit of people; perform control and restraint techniques when required; completes risk assessments etc
...
The “WHS requirements” included a requirement that employees were:
...
1.To comply with the WHS Policy and applicable regulatory and company WHS rules and requirements.
...
Mr Taylor deposed that Enterprise Agreement set out requirements applicable to all employees, including the following:
(c) An Employee's employment and ongoing employment is conditional upon the Company obtaining satisfactory outcomes to the following:
…
(v) Medical examination by a suitably qualified medical practitioner appointed by the Company, which determines whether the employee is fit to carry out the inherent requirements of his/her job where there are reasonably and genuinely held concerns regarding fitness for work. This includes the requirement for the Employee to complete and sign a medical declaration form, and successful annual C&R recertification assessment in accordance with policy.
(vi) The Company shall facilitate and pay associated fees for such medical examination and shall prior to the examination provide to the employee all pertinent documents and correspondence provided to the examining doctor. The employee shell agree to the release of the medical report to the Company and, for the purpose of the medical examination provide the medical examiner with all medical reports in his/her possession.
(vii) Report as a result of psychometric testing and/or analysis conducted by a Registered Psychologist. The Company shall facilitate and pay associated fees for such testing and/or analysis.
(viii) Employment of all Employees is at all times subject to the approval by the Minister.
…
(d) The Parties to this Agreement acknowledge:
a) the joint commitment to ensuring and promoting individual fitness for work and good health;
b) the importance of any lack of fitness being detected and/or determined in a manner that is transparent, fair and supportive of the Employee; and
…
(i) Employees will be required to participate in lawful and reasonable Company initiatives and observe policies designed to support the attainment and maintenance of a suitable level of fitness for work.
(ii) In the circumstances where:
a) an employee advises the Company of the existence of any health issue, including by the employee seeking an exemption from the application of a policy of the Company; or
b) an employee illness, injury or incapacity is brought to the attention of the Company from any medical practitioner or insurer,
Serco must:
c) promptly advise the Employee in writing as to the nature of any concern;
d) invite the Employee to promptly respond to the concerns of the Company including the provision of any personal medical opinion obtained by the Employee;
e) advise the Employee in writing of any decision or view of the Company with respect to the inability of the Employee to meet the inherent requirements of the Employee's job.
(iii) Following the above steps, the Company will confirm in writing that the Company has a genuinely held concern as to the Employee's level of fitness to carry out the inherent requirements of his/her role, then the provisions of 11(c)(v) shall apply.
Occupational health and safety requirements
Mr Taylor deposed that under the Work Health and Safety Act 2011 (NSW) (“WHS Act”), Serco had a non-delegable duty to ensure, as far as reasonably practicable, the safety of its workers and that the health and safety of other persons was not at risk from work carried out as part of its business.
Mr Taylor deposed that cl.41 of the Enterprise Agreement set out occupational health and safety requirements that Serco employees were required to observe. The clause relevantly read as follows:
41. Occupational health and safety
(a) Objective. The parties are committed to achieving and maintaining healthy and safe working conditions in all Company workplaces. This goal can best be achieved by developing a comprehensive approach to managing health and safety with joint involvement of management, Employees, their elected occupational health and safety representatives and the Union.
(b) This approach will have the following objectless:
a) to control workplace hazards at their source:
b) to reduce the incidence and costs of occupational injury and disease,
c) to provide an occupational rehabilitation system for workers affected by occupational injury or illness.
(c) Immunisation and risk of infection. The Company shall, in accordance with accepted occupational health standards provide immunization and blood tests to Employees for Hepatitis B, Influenza, Tuberculosis or other immunizations which the Company deems necessary. The immunization will be by qualified staff at each establishment or by the Employees' preferred general practitioner and will be paid for by the Company. The Company will pay for all blood tests or other tests if Employees are exposed to the risk of infection of disease at work.
(d) Risk Identification, assessment and control. The Company will take all practicable steps to ensure all hazards likely to cause injury are identified and assessed. This will be achieved through Centre hazard inspections, accident investigations, state-based and national collection and analysis of accident statistics.
(i) All Employees must take all practicable steps to identify and report hazards to management.
(ii) The hazards identified will be assessed and controlled and the Centre Manager will ensure that risks are assessed and control measures developed and implemented in consultation with:
a) Employees concerned;
b) health and safety representatives for the Employees concerned; and
c) the health and safety committee established in the workplace.
(iii) Where the issue is beyond Centre control and/or affects Centres on a state-wide or national basis, the risk assessment process shall be coordinated by the Company's national office with input sought from Employees and where appropriate the Union, to formulate and implement agreed control measures.
….
Mr Taylor deposed that cls.10 and 11 of Mr Wolfraad’s employment contract dealt with further occupational health and safety requirements. A copy of the contract was annexed to his affidavit and read in part as follows:
10. Company policies.
You will be bound by the employment policies and procedures adopted by the Company from time to time, including but not limited to policies dealing with the Code of Conduct, Bribery and Corruption and Work Health and Safety.
You will be required to ensure that you are familiar with these policies and procedures. You acknowledge and agree that the terms of such policies and procedures are not incorporated as terms of this Agreement and are not intended to have contractual effect.
11. Work, health and safety.
(a) You will be required to comply with the relevant health and safety legislation, regulations and policies by which the Company is bound and/or has established.
(b) Safety clothing, protective clothing, and Company uniforms etc. must be worn as directed by the Company.
(c) You will be required to undertake safety training during your employment.
(d) You may also be required to have a medical examination(s) during your employment that will include testing tor drug and alcohol levels, in accordance with the Company's Work, Health and Safety policies.
…
COVID-19 vaccination
Mr Taylor deposed that he had regular meetings with the Australian Border Force, NSW Public Health and the Medical Officer of the Commonwealth regarding how to meet Serco’s work health and safety obligations. Mr Taylor deposed that the Australian Border Force actively encouraged Serco to implement a policy that all staff be vaccinated. Mr Taylor’s evidence was that the nature of the work at VIDC was particularly challenging as it required close physical contact between employees and detainees, who could not be required to be vaccinated against COVID-19.
Mr Taylor deposed that on 10 October 2021 he sent an email to all staff announcing that Serco required all staff to be vaccinated. Mr Taylor deposed that from 11 October 2021 no unvaccinated staff were eligible to attend shifts at VIDC. Mr Taylor deposed that this was “a strategy implemented to ensure the ongoing safety of staff, detainees and stakeholders ... as effectively as practicable”.
Mr Taylor deposed that on 8 November 2021 he sent an email to all staff at VIDC stating that:
(a)Serco was committed to ensuring a safe working environment for staff, customers and stakeholders as far as practicable;
(b)the risk assessment required staff have their first vaccination by 31 October 2021 and second vaccination by 21 January 2022;
(c)vaccination was an inherent requirement of staff’s role and a control measure against transmission; and
(d)unvaccinated employees would not be permitted to attend VIDC.
To this email he also attached a copy of the Serco Vaccination Policy and Risk Assessment applicable at VIDC.
Mr Taylor deposed that the Serco “Divisional Standard Operating Procedure COVID-19 Vaccination” applied to any person who sought to enter VIDC, including all employees. Amongst other things, it stated,
1 Introduction
Serco has a duty to ensure that the workplace is without risks to the health and safety of all persons so far as reasonably practicable. Serco Group Pty Ltd (Serco) has implemented this risk based COVID-19 Vaccination Standard Operating Procedure/ Policy (SOP) to reduce the risk of COVID-19 transmission in the workplace. Serco recognises that COVID-19 is a highly contagious and potentially fatal condition. As with all risks, Serco is committed to affording its workers the greatest protection available against COVID-19, so far as reasonably practicable, through the application of the hierarchy of controls.
Serco recognises that vaccination, being an isolation control, is more effective than administrative controls such as social distancing and PPE such as masks, where human error can render these ineffective. The greater the risk, the more that should be done to control it. As such, Serco shall look to deploy COVID-19 vaccination as a control where the risk exposure requires it.
2 Applicability & Scope
This COVID-19 Vaccination SOP/Policy Vaccination Policy applies to all employees, contractors, subcontractors, employees of a contractor or subcontractor, labour hire employees, students and volunteers (Workers) of Serco and its Contracts within the Asia Pacific (AsPac) Division.
This COVID-19 Vaccination SOP/Policy is not contractual in nature and does not form part of a Worker’s employment contract.
3 Implementation
State and territory health agencies have issued public health orders that require some workers to be vaccinated, for example, those considered to be working in high risk workplaces, such as quarantine facilities and aged care. If public health orders are made in relation to Serco workers, they must be followed. Where Serco wishes to assess the risk and decides on the reasonably practicable implementation of COVID-19 vaccination as a control, the below process shall be followed to implement a COVID-19 vaccination policy for workers.
3.1 Risk Assessment
To support the determination of COVID-19 vaccination as a control for a site, relevant sites looking to implement COVID-19 vaccinations as a control are required to develop and implement a comprehensive risk assessment based on guidance provided by the Australian Government Coronavirus (COVID-19) website, Safe Work Australia and other federal, state and territory government websites and safety regulators.
...
Dealings with Mr Wolfraad
Mr Taylor deposed that on 14 October 2021 he wrote to Mr Wolfraad stating that Serco was monitoring the situation to provide a safe environment to employees and people in Serco’s care and had determined, by way of a risk assessment, that all staff at VIDC were required to be vaccinated with at least one dose in order to continue working from 11 October 2021. Mr Taylor deposed that he provided information on how an employee could seek a medical exemption and support for other employment opportunities not requiring vaccination. On 25 October 2021 he wrote to Mr Wolfraad stating that Serco’s risk assessment had been undertaken to determine if requiring a COVID-19 vaccination would be a reasonably practicable control measure against COVID-19 transmission and that it had concluded that all staff at VIDC were required to be vaccinated. On 5 November 2021 he wrote again to Mr Wolfraad stating that compliance with the vaccination requirement was an inherent requirement of the DSO role, that he was required to comply with Serco’s policies pursuant to his employment contract and that breach of the vaccination policy constituted an unacceptable health and safety risk in the then public health environment.
Termination
Mr Taylor deposed that on 19 November 2021 he wrote to Mr Wolfraad terminating his employment and providing five weeks’ pay in lieu of notice. The letter of termination read in part:
... Serco has performed a thorough risk assessment and consultation process. The outcome of this process was to require vaccination against COVID-19 for persons in the role of Detainee Service Officer as a work health and safety requirement, to protect not only your health and safety but that of your colleagues and other persons you encounter in performing your role. This requirement is contained in the COVID-19 Policy.
...
… Further, your failure to comply with the Direction and the COVID-19 Policy amounts to a failure to follow a lawful and reasonable direction by Serco. While you have a right to hold the views you do, these are incompatible with your obligations as an employee and your contract of employment, which requires you to, (among others):
•to comply with policies in place from time to time; and
•to take reasonable care of your health, safety and wellbeing, as well as the health, safety and wellbeing of others.
...
Mr Taylor deposed that the termination letter noted that Mr Wolfraad had not provided vaccination evidence or information to support an exemption being granted, which meant that he was not complying with the Direction and COVID-19 Policy and was unable to perform the inherent requirements of his role. Mr Taylor deposed that Mr Wolfraad had not registered any expression of interest for alternative roles.
Mr Taylor said that Mr Wolfraad’s group email had not been one of the causes of his dismissal. He said that Mr Wolfraad had been dismissed because the correspondence between him and Serco had required him to do certain things by certain dates and he had failed to comply with what Serco believed was a requirement of his role, namely to be vaccinated against COVID-19.
Mr Taylor deposed that he did not terminate Mr Wolfraad’s employment due to his disability or perceived disability, or political opinion.
Applicant’s submissions
In his written submissions, Mr Wolfraad said:
The Applicant relies on an application of s.351 of the Fair Work Act and breaches thereof by the Respondent in the context of discrimination based on political opinion, being in opposition to mandated COVID-19 vaccination, and perceived physical disability based on his status of being unvaccinated against COVID-19. The Applicant was terminated from his employment on 19 November 2021 by the Respondent for the reason that he remained unvaccinated against COVID-19 at that time …
and
The present case involves the taking of adverse action, ie. dismissal/ termination of employment, because of a particular attribute or status (unvaccinated status and/ or opposition to mandated COVID-19 vaccination), rather than ‘discrimination’ because of the imposition of a particular condition (of COVID-19 vaccination), however it is nonetheless instructive to consider some of the principles relating to discrimination.
Disability discrimination
Nature of disability discrimination
Mr Wolfraad referred to the definitions of direct and indirect disability discrimination found in the DD Act and noted that the DD Act’s definition of “disability” includes a disability that is imputed to a person. Although the test in the DD Act is expressed in different terms, Mr Wolfraad characterised indirect discrimination as occurring when a requirement or condition is imposed on a disabled person or group that does not operate, or operates with less difficulty, on a person or group not burdened with the disability. He also argued that it is unlawful to discriminate against a person based on a characteristic appertaining generally to those with the relevant attribute.He went on in that regard to refer to imputed disabilities being included in the DD Act’s definition of “disability” and then submitted:
The expression ‘generally imputed’ can include a characteristic that is usually, extensively or always present or that, when it does occur, is applicable to most or all of the persons of that status …
It was further noted by Mr Wolfraad, citing s.6 of the DD Act, that a requirement or condition would not amount to indirect discrimination if the requirement or condition was reasonable in the circumstances.
Discriminatory conduct based on disability
Mr Wolfraad said that the primary reason for his dismissal had been his unvaccinated status which he described as his physical disability or the physical disability he was perceived, that is to say imputed, to have. He said in that connection that:
… not having this physical matter in one’s body, it’s either a physical disability, if it actually works, or it’s a perceived physical disability, if it’s considered it would work …
In his written submissions, Mr Wolfraad stated:
The definition of ‘disability’ under s.3 of the Disability Discrimination Act includes a disability that is imputed to a person such that the person is perceived to have such disability. The presence of a disease or illness in the body is considered a disability under s.3 and as such, a person being perceived to have a disease or illness in their body would be perceived to have a disability.
He continued:
In the present case, if the Applicant’s unvaccinated status with respect to COVID-19 vaccination is to be considered a physical disability and/ or a perceived physical disability, then the Respondent taking action against the Applicant by dismissing the Applicant (when it would not have taken such action had the Applicant been vaccinated against COVID-19) would have engaged in direct discrimination or systemic indirect discrimination against the Applicant by reason of the Applicant’s physical disability or perceived physical disability in being unvaccinated against COVID-19 (as it would not have taken such action against those who were vaccinated against COVID-19, all other circumstances being equal).
Whether requirement or condition was an inherent requirement
Mr Wolfraad submitted that his employment contract did not oblige him to observe Serco’s COVID-19 vaccination policies, noting in that regard that cl.10 of the contract, which referred to the employment policies and procedures adopted by Serco from time to time, stated:
You acknowledge and agree that the terms of such policies and procedures are not incorporated as terms of this Agreement and are not intended to have contractual effect.
His case was that COVID-19 vaccination was not an inherent requirement of his role because it was not required by his contract and he was able to perform his duties without being vaccinated. He said that his position would have been essentially the same if the requirement had been dispensed with and he could still have performed the essential or inherent aspects of the role without being vaccinated.
Mr Wolfraad further submitted that an “inherent requirement” is something that is essential to the position in question and in determining what the inherent requirements of a particular employment are one must take into account the surrounding context of the employment. He argued that being unvaccinated did not prevent or diminish his ability to perform the essential, inherent aspects of his job, which had the same practical character, role and functions regardless of vaccination status.
Whether requirement or condition was reasonable
Implicitly referring to the exception of reasonable requirements and conditions from the operation of the indirect disability provisions of the DD Act, Mr Wolfraad submitted that mandating the COVID-19 vaccination in circumstances where non-compliance resulted in the termination of employment did not constitute a reasonable direction. He argued that COVID-19 vaccinations do not prevent transmission of the virus, infection with the virus or serious health consequences, including death, from such infection. Mr Wolfraad further submitted that the unreasonableness of the direction was underlined by the fact that there could be serious adverse side effects from receiving COVID-19 vaccines.
Political opinion discrimination
Mr Wolfraad argued that one reason for his dismissal had been because he had sent the group email on 18 November 2021 which was, he submitted, an expression of political opinion. He contended that the email must have had something to do with his dismissal because he was sacked the day after he sent it. He submitted that although “political” has been interpreted to mean a matter or activity which essentially involves the state and “bears on government”, a broader definition including “beliefs and opinions concerning the distribution and utilisation of economic, social and cultural power in a society”, has also been employed. His argument was that his opposition to the COVID-19 vaccines or mandatory vaccination policies constituted a political opinion and, because of this expressed opposition, his dismissal was discrimination based on political opinion or beliefs contrary to s.351 of the FW Act.
Consideration
Preliminaries
I accept the witnesses’ evidence.
Mr Wolfraad’s allegation was that Serco had contravened s.351 of the FW Act by discriminating against him because of his unvaccinated status, which was a real or perceived disability, and because of his political opinion opposing employer-mandated COVID-19 vaccinations.
Dismissal from employment is adverse action as defined by item 1 of s.342(1) of the FW Act and threats of dismissal are also adverse action by virtue of s.342(2)(a) of the FW Act. The issue in this case is whether Serco’s dismissal of Mr Wolfraad, or alleged threats of dismissal, contravened s.351 of the FW Act as he alleged.
Discrimination
In para.A of his pleading, amongst other things, Mr Wolfraad alleged that Serco had “discriminated against” him because he had not been vaccinated against COVID-19. In para.B of the pleading he alleged that his dismissal had been discriminatory and part of a “general policy of discrimination against all those employees who” were unvaccinated and had not complied with Serco’s unreasonable requirement that they be injected with a COVID-19 vaccine. In para.C of the pleading he alleged that the alleged requirement to be vaccinated against COVID-19 was unreasonable:
… because the COVID-19 vaccine would not prevent infection with the COVID-19 virus, nor would it prevent transmission of the COVID-19 virus once a vaccinated individual was infected.
Each of those allegations relies on the DD Act’s prohibitions on direct and indirect discrimination and on the fact that imposing on a person a requirement or condition with which they cannot comply because of a disability or which would disadvantage them because of their disability will amount to indirect discrimination contrary to that Act unless the requirement or condition is reasonable in the circumstances. The allegations made in part of para.A and in paras.B and C of the pleading are concerned with discrimination which, as this proceeding seeks relief under the FW Act, focuses attention on the how the word “discrimination” is used in s.351 of the FW Act. In Hodkinson v Commonwealth (2011) 248 FLR 409, I said that:
Although s 351 is headed “Discrimination” this heading is not to be taken as part of the Act: s 13(3) of the Acts Interpretation Act 1901 (Cth). The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s 351(1), such as a person’s disability, that a contravention is proved. The criteria found in s 351(1) rely in no way on the Disability Discrimination Act.
Further, s 351 does not employ the word “discrimination” other than as a term by which to identify other Acts which provide exceptions to the operation of s 351(1). The absence of that word from the list of prohibited reasons for adverse action found in s 351(1) means that there is no grammatical link between that subsection and ss 5 and 6 of the Disability Discrimination Act. There is, therefore, no term in s 351(1) whose proper construction may be understood by reference to what is contained in ss 5 and 6 of the Disability Discrimination Act.
Additionally, the fact that s 351(1)’s operation is limited by reference to exceptions derived from anti-discrimination legislation provides no basis to conclude that other features of those Acts should also influence the operation of s 351. Section 351(2) is dependent upon s 351(1) and is concerned with limiting s 351(1)’s scope, not with expanding it. Consequently, the fact that certain conduct mentioned in the Disability Discrimination Act is expressly excluded from the reach of s 351(1) does not, in the circumstances, suggest that conduct mentioned in the Disability Discrimination Act which is not so excluded is to be included in the proscriptions in s 351(1) other than to the extent that the subsection’s express terms already prohibit it. That is to say, s 351(2)’s exclusion of certain conduct from the operation of s 351(1) by reference to, amongst others, the Disability Discrimination Act, is insufficient to incorporate into s 351(1) conduct referred to in those Acts which is not excepted by s 351(2).
For these reasons, conduct which contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the FWA. (at 442-443 [140]-[143])
See also Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 455-456 [113], [114] and Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 at [61], [62].
It is apparent therefore that Mr Wolfraad’s allegations of discrimination do not engage any of the prohibitions prescribed by s.351 of the FW Act.
Disability
Paragraph A of the pleading also alleged that Mr Wolfraad had been dismissed for additional reasons that potentially did engage a prohibition prescribed by s.351 of the FW Act, namely:
(a)a physical disability, in not being vaccinated against COVID-19; or
(b)a perceived physical disability, in being perceived to have a disease by reason of not being vaccinated against COVID-19.
It is not necessary in this case to discuss what “disability” means other than to record that dictionaries define it as the lack of ability to do something, inability or incapacity: cf. Jain v Special Broadcasting Service Corporation [2022] FedCFamC2G 814 at [126]-[128]. Mr Wolfraad characterised the disability suffered by him that allegedly motivated his dismissal as his “unvaccinated status”. However, that was not so much a disability as a postulated, hypothetical inability to avoid suffering disability in the form of a COVID-19 infection at some point in the future. I find that it was not a disability and therefore does not engage s.351 of the FW Act. Mr Wolfraad also relied on the allegation that a disability had been imputed to him. However, that allegation cannot succeed because the concept of imputed disability is not included amongst the prohibited motivations for adverse action found in s.351 and because, for the reasons already given, the DD Act’s expansion of the definition of disability to include imputed, or in this case perceived, disability is not imported into the operation of s.351 of the FW Act.
Mr Wolfraad additionally alleged in para.D of the pleading that threats of dismissal were adverse action, drawing on s.342(2)(a) of the FW Act. That allegation also cannot succeed because its substance is that adverse action was taken because Mr Wolfraad had failed to comply with an unreasonable requirement to be vaccinated against COVID-19, which is really an allegation of indirect discrimination contrary to the DD Act, rather than of a breach of s.351 of the FW Act.
Political opinion
Paragraph A of the pleading also alleged that Mr Wolfraad’s employment had been terminated for another reason that was said to contravene s.351 of the FW Act, namely:
(a)his political opinion in opposition to policies of mandatory vaccination against COVID-19.
Whether or not Mr Wolfraad’s group email sent on 18 November 2021, which he characterises as a political statement was, in truth, a statement of political views rather than a statement of his opinion of Serco’s particular insistence that staff at VIDC be vaccinated is not, I find, of central significance to this aspect of the matter. I find that whatever that email was, it did not motivate Serco to dismiss him. This is because, by the time it was sent, the die had already been cast on his future employment.
The evidence indicates that the path to Mr Wolfraad’s dismissal commenced with Mr Taylor’s letter of 14 October 2021 and then continued through the exchange of correspondence between the two men, most relevantly Mr Taylor’s letter of 12 November 2021 in which he gave Mr Wolfraad until 17 November 2021 to advise Serco of any matters he would like it to consider before deciding whether to dismiss him, which it did by letter on 19 November 2021. As I have said, by then the die was cast. Mr Taylor’s letter of 14 October 2021 had stated that Serco would assume that Mr Wolfraad did not intend to be vaccinated against COVID-19 unless he advised it to the contrary by 18 October 2021, a deadline that was extended, effectively to 17 November 2021. I infer that Mr Wolfraad provided no such advice. The evidence makes it clear that by the end of 2021 Serco had resolved not to employ at VIDC individuals who were not vaccinated against COVID-19 and Mr Wolfraad’s intransigence on the issue determined the future of his employment. The statements Mr Wolfraad made in his group email are red herrings because by the time that email was sent, Mr Wolfraad had failed to advise Serco by its last deadline that he would comply with a condition precedent to his continuing employment on which it insisted, namely vaccination against COVID-19. To the extent that the presumption prescribed in s.361 of the FW Act applied to what Mr Wolfraad would have the Court accept was an expression of political opinion, I find that it has been rebutted.
Inherent requirement
In the circumstances it is not necessary to consider whether Mr Wolfraad’s refusal to be vaccinated against COVID-19 meant that he would not comply with an inherent requirement of his position. However, in the event that I am incorrect in any of my previous findings I will address that question.
It can be accepted that had it not been for the COVID-19 pandemic Mr Wolfraad, who was a well-regarded employee, could have continued to perform his job to a high standard and in the same manner as he had performed it before the pandemic. However, for Serco the pandemic changed things. The evidence indicates that it was aware of the duty of care it owed the detainees at VIDC who, not being free to leave the facility, were placed in a position of vulnerability. I have no doubt that Serco’s relevant actions were designed to protect the detainees in its care, and others, from COVID-19 transmission. Importantly, although Mr Wolfraad is sceptical of COVID-19 vaccines, he did not seek to suggest that Serco did not believe in good faith that they provide useful protection from transmission of, and illness caused by, the COVID-19 virus. I find that Serco’s requirement that its VIDC staff be vaccinated against COVID-19 was a good faith workplace health and safety initiative taken in the discharge of its obligations to, at least, the VIDC detainees. For reasons that will become apparent, it has not been necessary to consider whether that conclusion was well-based scientifically. Nor would that have been possible, as no admissible evidence on the topic was adduced.
In X v Commonwealth (1999) 200 CLR 177 Gummow and Hayne JJ said at 208 [102] [103], Gleeson CJ and Callinan J agreeing at 181 [8] and 232 [170] respectively:
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. … the requirements that are to be considered are the requirements of the particular employment ...
It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way . It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others. (reference omitted)
That case concerned the operation of the DD Act but it followed and applied the High Court’s earlier reasoning in Qantas Airways Ltd v Christie (1998) 193 CLR 280, which concerned a predecessor of the FW Act, the Industrial Relations Act 1988 (Cth) (“IR Act”). Section 170DF(1) of the IR Act provided that an employer was not to terminate an employee's employment for, amongst other things, physical or mental disability or political opinion, but also provided in subs.(2) that subs.(1) did not prevent such matters being a reason for termination “if the reason is based on the inherent requirements of the particular position”. That is to say, the expression “inherent requirements” of particular work or of a particular position has the same meaning in the DD Act and in the FW Act, as successor to the IR Act.
It is to be noted that Mr Wolfraad did not contend that vaccination against COVID-19 could not be made and was not made an inherent requirement of his employment because, as he would have it, in broad terms, it was pointless and potentially dangerous. Instead he submitted:
… that COVID-19 vaccination is not an inherent requirement of his role, in particular because it is not required as part of his contract, and he is able to practically and effectively perform the activities of his role as a security officer without having an injection of the COVID-19 vaccine. Furthermore, the Applicant submits that the direction to have a COVID-19 vaccination was not a reasonable direction because such vaccine would not prevent infection with or transmission of the COVID-19 virus, would not prevent serious illness in the event a vaccinated individual was infected with the COVID-19 virus, and had serious potential adverse affects [sic] on health.
The fact that the vaccination requirement was not expressly provided for in Mr Wolfraad’s contract of employment does not alter the fact that cls.10 and 11 of that contract provided that employees were to observe company policy as in force from time to time and that the “Divisional Standard Operating Procedure COVID-19 Vaccination” referred to by Mr Taylor in his evidence was such a procedure. By that policy change, Serco made employment at VIDC, even for existing employees, conditional upon vaccination against COVID-19. Once Serco did that, such vaccination was an inherent requirement of Mr Wolfraad’s position, and additional to the position’s requirements as they had stood before the pandemic which I accept Mr Wolfraad could have continued to discharge.
To the extent Mr Wolfraad’s argument is based on questions of reasonable direction, it relies on provisions of the DD Act concerning indirect discrimination and cannot succeed for the reasons given earlier.
Consequently, even if Serco dismissed Mr Wolfraad for a reason prohibited by s.351(1) of the FW Act, I find it did so because of the inherent requirements of his role and his unwillingness and failure to fulfil an important one of them, namely being vaccinated against COVID-19.
Conclusion
None of the breaches of s.351 of the FW Act alleged by Mr Wolfraad have been made out.
Consequently, the application will be dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 21 December 2022
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