Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District

Industrial Relations Commission (NSW)|2022-05-25

decision

Ms Arlene Adriano ("applicant") was employed as a Registered Nurse at St George Hospital ("Hospital") which is within the South Eastern Sydney Local Health District ("SESLHD"). The respondent in these proceedings is the Secretary, Ministry of Health in respect of SESLHD ("respondent") by operation of s 116H(1) of the Health Services Act 1997 (NSW) ("HS Act").
The applicant was employed by the respondent on 20 August 2012 as a Registered Nurse working in 3 South Ward of the Hospital. It was a clinical role providing patient care, such as pre and post-operative care, patient washing, giving medications, undertaking observations, emptying drains, and wound management.
On 22 December 2022, the applicant's employment was terminated on the basis that she had not demonstrated that she had been vaccinated against COVID-19 or had an exemption due to a medical contraindication. On 17 January 2022, the applicant filed an application for an unfair dismissal remedy under s 89 of the Industrial Relations Act 1996 (NSW) ("the Act"). The applicant contends that her dismissal was unfair according to the criteria in s 88 of the Act. The respondent denies this contention. I have decided to dismiss the application for the reasons contained in this decision.

Key Facts

The key facts and circumstances relating to the termination of the applicant's termination are not in contest and can be summarised as follows: 1. On 26 August 2021, the Deputy Secretary of People, Culture and Governance in NSW Health wrote to NSW Health staff regarding PH Order 1, which came into effect on the same day; 2. During August and September 2021, the Chief Executive of SESLHD provided staff with updates on the NSW Government pandemic response, Public Health Orders and COVID-19 vaccinations. This included providing access to Livestream information sessions with medical experts and Frequently Asked Questions, (although there was some contention as to whether the applicant could access these); 3. On 23 September 2021, the respondent wrote to the applicant regarding the Vaccination Requirements, advising she would be unable to work on and from 30 September 2021 if she did not comply with these; 4. On 29 September 2021, the respondent wrote to the applicant regarding Vaccination Requirements, advising that she was unable to work for NSW Health while she was not compliant with these. As a consequence of not complying with the Vaccination Requirements, the applicant was on unpaid leave from 30 September 2021 to 22 December 2021; 5. On 5 October 2021, the respondent wrote to the applicant, inviting her to show cause why her employment should not be terminated within 14 days because she did not meet the Vaccination Requirements of PH Order 1; 6. On 19 October 2021, the applicant responded to the effect that she had personal reasons for not complying with the Vaccination Requirements, that she believed the vaccine mandate is arguably illegitimate on the basis of discrimination, medical, legal, moral and ethical grounds and she was ready, willing and able to work; 7. On 20 October 2021, the respondent replied acknowledging receipt of the applicant's response; 8. On 22 October 2021, PH Order 2 came into effect; 9. On 12 November 2021, the Determination came into effect; 10. On 22 November 2021, the respondent emailed the applicant enclosing the Determination and provided her a second opportunity to show cause as to why her employment should not be terminated for failure to comply with the Vaccination Requirements; 11. Also, on 22 November 2021, a further letter was sent to the applicant reminding her of the Vaccination Requirements; 12. On 23 November 2021 and 24 November 2021, the applicant responded to the effect that she wished the termination of her employment to be deferred until 31 January 2022 in order to seek legal counsel, noting court challenges to the Vaccination Requirements. The applicant reiterated she has "full capacity to return to work"; 13. In her responses, the applicant expressed concern about the safety of available vaccines and also referenced her father's death; 14. The respondent offered the applicant an opportunity to speak with a public health specialist, and emailed the applicant on 29 November 2021 with this offer; 15. On 13 December 2021, the applicant spoke with Dr Apo Demirkol after taking up the respondent's offer, and on 14 December 2021 the respondent emailed the applicant following up on how the appointment went. The applicant replied by email on 15 December 2021, indicating she did not find the session helpful and her position on vaccination had not changed; 16. On 22 December 2021, the applicant's employment was terminated by the respondent for failure to meet the Vaccination Requirements.

The applicant's case

The applicant appeared by her agent, a lay advocate, Mr Chris Petrick. Mr Petrick did not have any qualifications or background in law or industrial relations and accordingly, I took care to ensure the applicant was given an opportunity to understand the process and have her case fairly considered. This included providing a timetable for further submissions to be filed after the hearing of the case. I am confident the applicant was given a fair opportunity to put her case to the Commission.
The applicant filed a significant amount of material in support of her case including a statement consisting of 10 pages, a chronology of events, and annexures of approximately 400 pages filed 11 April 2022 (Ex A1).
The applicant also relied upon submissions in reply, which also contained assertions of fact filed 13 May 2022: Ex A2. The respondent did not object to that material being admitted on the basis that appropriate weight be given to it and evidence "be read as evidence", and submissions "as submissions". The applicant was not cross-examined in support of the evidence she gave in respect of her substantive application.
The applicant filed additional material after the hearing of the matter, consisting of a 20-page document titled "Review of Respondent's Case Laws" with three parts: Section A "Table of Case Law Summary of Conclusion"; Section B - "Narration on Case Analysis to Respondent's Case Law and Submission", Section C - "Clarification" ("AS").
The applicant did not seek to challenge the validity of the PH Orders or indeed, the Determination: see for example AS pp 15 [4] -16[1]. The applicant arguments as to why her dismissal was unfair, as far as these could be discerned, can be crystalised as follows: 1. The respondent did not provide sufficient information regarding the potential risks of vaccination and failed to assure the applicant of the safety of available COVID-19 vaccines. 2. The respondent did not comply with its obligation with respect to the Workplace Health and Safety Act 2011 (NSW) ("WHS Act"), including by failing to: 1. discharge its duty of care to her; 2. consult with her about the Vaccination Requirements, submitting that although there was some consultation the quality of the consultation by the respondent failed to provide relevant information to advise and quantify risks of taking the COVID-19 vaccines; 3. provide the answer to all questions asked by the applicant with respect to the safety and efficacy of the COVID-19 vaccines; and 4. provide her with an opportunity to consult with another Doctor in respect of her questions, other than Dr Demirkol about the safety and efficacy of the COVID-19 vaccines. 1. The decision to terminate her employment was harsh because it was an 'extreme' response to the situation and had a 'disproportionate' impact on her.
Despite the applicant stating that she did not argue against the validity of the reasons for the dismissal, a significant amount of the evidence she sought to rely upon ran counter to that position.

The respondent's case

The respondent relied upon the affidavits of Helen Blake, Manager Employee Relations (Ex R2) and Stephanie McPherson, Nurse Unit Manager (Ex R3) both affirmed 29 April 2022. The applicant did not require the respondent's witnesses for cross-examination.
The respondent filed an outline of submissions on Submissions dated 29 April 2022 ("AS"). In addition, the respondent filed Submission in Reply on 21 June 2022.
In short, the respondent argued that there was a valid reason for the termination of the applicant's employment, given her inability to perform her role without meeting the Vaccination Requirements. The respondent submitted that they were not obliged to consult with the applicant about the implementation of the Vaccination Requirements pursuant to the WHS Act or otherwise, given there was no decision for the respondent to make - the PH Orders were imposed upon them by Government. Further to the extent there was such a requirement, the respondent submitted it did consult with the relevant unions and provided sufficient information to the applicant as set out above at [11]. The respondent ultimately submitted that the decision to terminate her employment was not harsh, unreasonable or unjust.

Relevant legislation and principles

The principles to apply in the determination of this matter are well settled and can be set out briefly.
Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
To be entitled to any remedy under the Act, the onus is on the applicant to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
Section 88 of the Act sets out matters to which the Commission may have regard in determining an application under s 84. It is not necessary to reproduce that provision.

Was there a proper reason for the dismissal?

Despite much of the material relied upon by the applicant challenging the efficacy and safety of Covid-19 vaccines, the applicant does not challenge the validity of the PH Orders of the Determination. In Griffin and others v Health Secretary; Thorncraft and others v Secretary of the Department of Education [2022] NSWIRComm 1027 Commissioner Murphy accepted the respondent's submissions on the operation and effect of the PH Ordrs and Determination and the fact the respondent had and has no discretion to derogate from the terms of the PH Orders or employ staff who did not comply with the Determination [50]. I note in any event that the issue of the validity and enforceability of the PH Orders have been disposed of by the Supreme Court: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, upheld in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.
With regards to the Determination, I respectfully agree with the decision of Commissioner Sloan in Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 (Cromie) that in a case where it is argued that a dismissal was unfair on the basis that it was the consequence of a determination made pursuant to s 116A of the HS Act which is alleged not to be lawful and reasonable, the Commission is able and should consider that case: at [21]. However, in my view, there is no proper basis put forward by the applicant to decide that the Determination was not validly made. Subs 116A(1) confers on the Health Secretary the power to "fix the salary, wages and conditions of employment of staff employed" in the NSW Health Service. In circumstances where PH Orders are in place preventing employees non-compliant with the Vaccination Requirements from working, I can see no reasonable argument that would justify the Commissioner's interference with the respondent's exercise of the power bestowed upon them to make the Determination.
It follows that the decision to terminate the applicant's employment was not unjust. There was a sound, defensible and well-founded reason for the termination of the applicant's employment. The applicant's employment was terminated because she did not provide any evidence of meeting the Vaccination Requirements. The PH Orders had the effect of preventing the applicant from working in her substantive role and the Determination prevented her from continuing to be employed even on the basis that she did not work. Had the respondent allowed the applicant to continue to work in her role, they would have been in breach of the PH Orders and the Determination. This finding is consistent with a number of decisions where the dismissal of an employee unable to meet with the requirements of the PH Orders has been found to be a valid reason and proper basis for dismissal: see Aleisha Jean Shepard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92 at [50]; Leisa Ainslie v Groot Eylandt Mining Company Pty Ltd [2022] FWC 304; Aucamp v Association for Christian Seniors Citizens Homes Inc [2021] FWC 6669; Edwards v Regal Cream Products Pty Ltd [2022] FWC 257; Cromie at [35]; Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 at [48] ("Peck").
The respondent also sought to rely upon the doctrine of frustration of contract as a further and separate basis from the issue of capacity that provided a justifiable reason for the dismissal of the applicant: AS at [5.4]-[5.7]. Whether a contract ended due to the doctrine of frustration is a question of fact occurring when an unforeseen and unexpected event prevents the performance of the contract: Tsarkiroglou and Co Ltd v Noblee Thorl GmbH [1962] AC 93. The circumstances of the Vaccination Requirements coming into existence were unprecedented and could not have been predicted at the time the employment contract was entered into by the parties. There would have been a strong argument that the circumstances that arose when the PH Order came into force caused a frustration of the employment contract, severing parties contractual relationship as a matter of law and not at the respondent's initiative: Brisbane City Council v Group Project Pty Ltd (1979) 145 CLR 143 at [159]-[163]. However, I decline to make this finding on the basis that it would be inconsistent with both parties' cases that the dismissal occurred at the initiative of the respondent, who maintained and represented up until 22 December 2022 through its actions and correspondence that the employment relationship remained in existence.

Was the respondent in breach of its obligations to provide information and consult with the applicant including as required by the WHS Act?

The applicant contended that the respondent did not provide sufficient information regarding the potential risks of vaccinations and failed assure the applicant of the safety of available COVID-19 vaccines. She specifically referred to information provided by Safe Work Australia stating a need to consult with workers in respect of COVID-19 vaccines: Ex A1 at pp 1-2. She further referred the Commission to a best practice guide published by the Fair Work Ombudsman on Consultation and Cooperation in the Workplace in her final submissions: p 6 of AS.
In Munn and Others v Health Secretary [2022] NSWIRComm 1044 Commissioner O'Sullivan ("Munn") considered the following question (at [2(1)]): "In complying with the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 2 Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 3 Order 2021 and/or Health Secretary's Determination 33 of 2021 was the respondent(s) required to consult and/or undertake risk assessments in accordance with the provisions of the Work, Health and Safety Act 2011 (NSW)?"
Commissioner O'Sullivan found that there was no such requirement to consult and/or undertake a risk assessment in accordance with the WHS Act. Further, in Christopher Doyle; Julia Sant; Antonio Prosia v Melbourne Archdiocese Catholic Schools Ltd T/A MACS (MACS) [2022] FWC 346 ("MACS"), Commissioner Wilson of the Fair Work Commission observed that the requirement to consult under the relevant industrial instrument applying in that matter was not enlivened, given the employer had no discretion but to apply the requirements of the Victorian Chief Health Officer Directions requiring, amongst other things, that the respondent prevent entry of unvaccinated workers to the workplace unless the worker holds a valid medical exemption. On this basis, the circumstances were distinguished from those in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (2021) 310 IR 399; [2021] FWCFB 6059. There were no arguments put in this matter that would suggest a different conclusion should be reached than in Munn or MACS.
There was no requirement to consult with the applicant pursuant to any industrial instrument or ss 47 or 49 of the WHS Act because the respondent was not engaged in a process of deciding whether to implement a policy. Rather, the respondent was implementing the legal obligation imposed upon it that its employees comply with the Vaccination Requirements, in at least so far as the PH Orders were concerned.
In any event, there is evidence in this matter that the respondent did consult with relevant unions about the introduction and implementation of the Vaccination Requirements, including providing updated information about the NSW Government pandemic response, PH Orders and COVID-19 vaccinations. The SESLD, who had 15,000 staff required to comply with the Vaccination Requirements, organised sessions with medical experts and information in respect of Frequently Asked Questions: see Ex R2 at [9]-[12]. Although there was some contention about the applicant's opportunity to attend and or access some of these sessions, the respondent went further in providing her access to a medical practitioner, Dr Dermikol to assist with the questions she had with respect to COVID-19 Vaccines. It would seem that the applicant was unable to trust the information provided by Dr Dermikol as the applicant believed that he provided her with inaccurate information about the number of adverse deaths associated with the COVID-19 vaccines and was not aware of the "renowned experts" she had been listening to: Ex A1 at pp 3-4 and Item 52 of applicant's chronology. There was no obligation upon the respondent to source another expert for the applicant to consult with her in respect to her personal decision to become vaccinated, or not.
What is clear is that every effort was made by the respondent to ensure that the applicant was aware of the Vaccination Requirements and of the consequences of non-compliance. The respondent did not have obligations to consult with the applicant beyond this.
The applicant's views with respect to the Vaccination Requirements were not going to change their binding nature and there is no proper legal basis to argue that the respondent had an obligation to assure her of the safety of the vaccines.
For these reasons, I do not accept that the dismissal was unfair due to a failure by the respondent to consult with the applicant, whether pursuant to the WHS Act or otherwise. Further, to the extent the applicant argued that those failures constituted a breach of the respondent's duty of care to the applicant pursuant to s 19 of the WHS Act, I reject that the respondent was obliged to support the applicant any further than they did to make an informed decision about whether to become vaccinated.
It was clear from the evidence relied upon by the applicant and the submissions made by her in the proceedings that had the respondent provided the information she argued it was obliged to provide in the context of these processes, and done all the things she had submitted it should have done, it would have made no difference to the applicant's decision to remain unvaccinated in respect of COVID-19. The applicant has located and put before the Commission a great deal of information about the COVID-19 vaccines and has decided for herself that they are ineffective and unsafe. Sadly, this included the Death Certificate of her father, who was had received two doses of a COVID-19 vaccine. The applicant seemed to be arguing that the passing of her father was indicative of the ineffectiveness of COVID-19 vaccines, including by contrasting the experience of other relatives who recovered quickly from the virus when not vaccinated.
Clearly, the applicant's views with respect to vaccination against COVID-19 was something she had thought about a lot and had arrived at the strongly and personally held view that it was not the right thing for her to do. Indeed, the material relied upon by the applicant in the proceedings could be described as an extensive dossier of information to support her view that COVID-19 vaccines are ineffective and dangerous. In her statement, she argues that the "Reasons of the 'Unfairness' in my dismissal process can be identified through the intertwined communications and events including reading publications and viewing clips from reliable sources, both prior and subsequent to the dismissal letter being issued": Ex A1 at p 1.
There was no obligation upon the respondent to convince the applicant to become vaccinated, although her evidence and presentation of her case has led me to the conclusion that it would be near impossible for the respondent to change her perspective on the issue anyway. In this regard, the observations of Commissioner Muir in Peck are on point: "44. Mr Peck submitted that a choice to take a vaccine, or be dismissed, was an unfair choice. However, that this formulation fails to take into account the obligations on the respondent pursuant to PHO1 and PHO2 not to allow an unvaccinated health care worker to do health care work. A health care worker who cannot do health care work is unable to perform an inherent requirement of their job. 45. This additional factor would of itself be sufficient to prevent the choice being unfair, as the impact of the choice on Mr Peck needs to be balanced against the impact of the parallel obligation on the respondent created by PHO1 and PHO2. 46. However, even without this counter balancing obligation on the respondent it would not be an unfair choice. It may be a choice that Mr Peck does not like, and it may be one with serious consequences, but it was one imposed in particular circumstances. Those circumstances included unprecedented restrictions on citizens, businesses and public services, and most importantly that the choice was imposed on health care workers. 47. It is frankly impossible to conceive of a profession on whom such a choice could more obviously be imposed. In Mr Peck's case he was a registered nurse working in a public hospital. 48. To the extent I need to consider whether the Determination is a lawful and reasonable direction it follows from the foregoing that I do consider it both lawful and reasonable."
The applicant had a choice, and she has decided, knowing the consequences of that decision, to remain unvaccinated in respect of COVID-19. Her arguments in respect of a lack of consultation were, frankly, disingenuous. The decision to terminate her employment was not unreasonable, given the process undertaken by the respondent.

Was the decision harsh?

On the question of harshness, I have considered the impact the decision to terminate her employment will have on the applicant. There is a financial, social and emotional impact associated with losing employment which can be felt most acutely in a profession such as nursing, which is more in the nature of a calling, rather than a job to make ends meet. The applicant also recently lost her father. She has clearly struggled to process the events of the pandemic and they have had a significant impact on her life.
The applicant submitted that the decision to terminate her employment was harsh because it was an extreme response having a disproportionate effect on her. The concepts of proportionality and excessiveness in considering harshness are most relevant where termination is on the basis of misconduct. Here, the applicant is not accused of misconduct. She has lost her job because she is unable to perform the duties of her role because she has chosen not to become vaccinated in respect of COVID-19, as is her right.
I have considered the impact of the termination of her employment and "weighed them in the balance" against the reasons for and circumstances of the applicant's dismissal: see Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [156]. However, in the circumstances, I do not consider that the applicant's termination "has been shown to be too harsh a consequence": see Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [29].

Conclusion

Having found that the applicant's dismissal was neither harsh, unreasonable or unjust, I have decided to dismiss her application.

Order

The application in matter 2022/17089 is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2022

Workplace Health and Safety Act 2011(NSW)ss 19, 47, 49

Work, Health and Safety Act 2011(NSW)

Health Services Act 1997(NSW)ss 116A(1), 116H(1)

Industrial Relations Act 1996(NSW)ss 84, 88, 89, Public

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