Blackwood v Northern Beaches Council

Industrial Relations Commission (NSW)|2022-07-04|Before: Beazley JA, Gibbs CJ, Wilson J

decision

Mark Blackwood was employed by the Northern Beaches Council ("Council") as a Commercial Centres Team Leader. His employment was terminated on 4 March 2022 as a result of his failure to meet the requirements of the Council's COVID-19 Vaccination Policy ("Policy").
On 24 March 2022 Mr Blackwood commenced proceedings pursuant to s 84 of the Industrial Relations Act 1996 ("Act"), in which he claimed that his dismissal was harsh, unreasonable or unjust ("Application"). He seeks reinstatement to his position.
The Application came before me for hearing on 4 July 2022. Having considered the evidence and submissions of Mr Blackwood and the Council, I have determined to dismiss the Application. These are my reasons.

Mr Blackwood was self-represented

As Mr Blackwood was self-represented, I was guided by the following observations of Beazley JA in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "309. Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. ..."

Factual background

The factual context in which the Application came to be made is not significantly in dispute. There are some matters in respect of which Mr Blackwood took issue, and which I address as necessary below, but by and large he did not challenge the evidence led by the Council as to the process by which it developed and implemented the Policy; its attempts to engage with him as to the application of the Policy to his particular circumstances; and the process by which he was ultimately dismissed.
As such it is convenient to reproduce the summary of the factual background set out in the Council's written outline of submissions. To the extent that there was controversy regarding these facts, I am satisfied that they are made out on the Council's evidence: "Factual background Mr Blackwood's employment with Council 6. Mr Blackwood was employed by Council from 5 March 2007 until 4 March 2022 (the Termination), being first employed by Pittwater Council and subsequently by Council after a local council amalgamation process in 2016. Immediately prior to the Termination, Mr Blackwood was employed in the role of Commercial Centres Team Leader. 7. In this role, Mr Blackwood was required to manage and participate in planned and reactive maintenance programs across the Northern Beaches commercial centres. The team is responsible for ensuring the commercial centres are high quality, safe, wellmaintained areas. The Team Leader role also involves undertaking horticultural maintenance activities in these locations, as well as supervising and leading the team's activities through day-to-day mentoring and upskilling of staff, and activities such as conducting toolbox talks. Council's response to the COVID-19 pandemic 8. In around August 2020, Council conducted an initial, organisation-wide 'Operating a COVIDSafe Workplace' risk assessment (COVIDSafe Risk Assessment) to identify and assess the COVID-19-related hazards and risks present in Council workplaces, and suitable and available control measures that Council could implement in response to those hazards and risks. 9. In accordance with Council's obligations under work health and safety (WHS) laws and regulations, the COVIDSafe Risk Assessment was periodically reviewed by Council: (a) to ensure that the control measures implemented are maintained and remain effective, and (b) where new, and potentially more effective, controls measures became available. 10. The initial COVIDSafe Risk Assessment, and its subsequent reviews and updates, were conducted by Council's WHS team, with further review and approval by the leader of Council's WHS team and Executive Manager, Human Resources. 11. The initial COVIDSafe Risk Assessment, and each subsequent update to it, was made available to Council staff via the Council's internal intranet. … Review of COVIDSafe Risk Assessment as vaccines became available 12. From mid-2021, following the roll out of approved COVID-19 vaccines in Australia, Council's Chief Executive Team (CET) (comprised of Council's Chief Executive Officer and its six directors) considered introducing a vaccination policy to comply with Council's obligations under WHS laws, and because working from home arrangements were not feasible long term given Council's responsibilities to provide services to the community. 13. Thereafter the following steps occurred[:] (a) Council's internal communications team arranged staff forums, hosted by Council's CEO, Mr Ray Brownlee, providing information regarding Council's COVID-19 response (including potential vaccination requirements) and the opportunity to ask questions; (b) CET directed that Council's Human Resources department prepare a draft COVID-19 Vaccination Policy (Policy) and a draft Managing Unvaccinated Staff Procedure (Procedure): i. the draft Policy proposed that all workers be required to be fully vaccinated against COVID-19, and to maintain their vaccination status on an ongoing basis, unless an exemption applied for medical reasons; and ii. the draft Procedure outlined the steps that Council would take in respect of a worker who elected not to be vaccinated in accordance with the Policy. The final step in the Procedure proposed that if an employee had not indicated they planned to be vaccinated against COVID-19, or indicated they would not be vaccinated against COVID-19, then Council would consider termination of the employee's employment; (c) Council established a restricted access mailbox (supported by a Privacy Impact Assessment) which allowed staff to voluntarily disclose their vaccination status from the following: single dose, double dose, vaccination appointment booked, unable to be vaccinated due to medical contraindication or do not intend to be vaccinated. This mailbox was established to assist Council in deliberations regarding the introduction of a vaccine mandate, as well as in Council's operational response and to ensure compliance with Public Health orders requiring vaccination; and (d) in September 2021 Council completed a review of its organisational COVIDSafe Risk Assessment, which took into account: i. information made available by NSW Health in relation to the efficacy of available vaccines and the risks associated with being vaccinated and unvaccinated; and ii. the nature of the positions performed by workers within Council. 14. As a result, Council determined that a vaccination policy was a suitable and available control measure that was reasonably practicable to implement and the Risk Assessment was updated to reflect vaccination as a 'recommended' control where appropriate. 15. In response, on 7 October 2021 the CET approved the draft Policy and the draft Procedure. Consultation regarding the draft Policy and Procedure 16. On 8 October 2021 Council commenced consultation with workers and union representatives on the draft Policy and draft Procedure. Consultation was commenced via a meeting with Council's Consultative Committee (comprised of union representatives and employee representatives from each business unit), and via an allstaff email update from Council's CEO via the 'Staff Update Mailbox'. The all-staff email update contained a link to a dedicated page on Council's intranet where staff could access the draft Policy, draft Procedure and an FAQ document prepared by Council responding to common queries about the draft documents and vaccination generally. 17. The consultation process relating to the draft Policy and Procedure ran for 6 weeks (which included an extension of the original consultation period). During this time the draft Policy and Procedure were widely communicated to employees, including Mr Blackwood, through multiple channels such as union representatives, emails, and Council's intranet. Regular all-staff update emails were sent about the draft Policy and the draft Procedure including on: (a) 14 October 2021; (b) 21 October 2021; (c) 28 October 2021; (d) 4 November 2021… 18. A dedicated email address was established to enable employees to provide feedback on the draft Policy and Procedure. The details of this email address were included in the all-staff email update sent on 8 October 2021. 19. The feedback and each question were considered by Council and consolidated into a feedback document (which included Council's response to each) which was then distributed to all employees via the Council's dedicated intranet page. Approval of the draft Policy and draft Procedure following consultation 20. On 24 November 2021, following the consultation process, the CET approved the draft Policy and Procedure which Council then introduced for the reasons summarised at [12] above. Under the Policy and Procedure, Council staff were required to be vaccinated, where appropriate, to attend Council workplaces. 21. On 25 November 2021, the CET determined that the requirement under the Policy and Procedure that all staff be fully (double) vaccinated would be implemented from 4 January 2022. By Staff Update email dated 25 November 2021, all staff were notified that unvaccinated staff would not be able to attend work from 4 January 2022. 22. In December 2021, Council again reviewed and updated the COVIDSafe Risk Assessment to reflect that vaccination of staff was an appropriate control to mitigate the risks of COVID-19. Implementation of the Policy and the Procedure 23. On 23 December 2021 Council sent a letter from its CEO to all unvaccinated employees, and all employees who had not disclosed their vaccination status, including Mr Blackwood. The letter to Mr Blackwood was dated 22 December 2021 and was hand delivered to him on 23 December 2021. The letter reminded all unvaccinated employees, including Mr Blackwood, that from 4 January 2022, if they remained unvaccinated at this date, they would not be able to attend Council's workplaces and would be placed on authorised unpaid [sic] leave if not able to work temporarily from home. The letter encouraged those employees who were yet to disclose their vaccination status to do so by 31 December 2021 by sending an email to the dedicated, restricted access, email address that Council had set up for this purpose, and that if they failed to do so, Council would consider them unvaccinated. 24. Mr Blackwood did not provide any evidence of his vaccination status to Council by 31 December 2021 or at all and had previously indicated to his manager Mr Steve Lawler (Executive Manager, Parks & Recreation) during a conversation at work in November 2021 that he did not intend to be vaccinated against COVID-19. Between 24 December 2021 to 17 January 2022 Mr Blackwood was on annual leave. Upon his return from annual leave on 17 January 2022, Mr Blackwood presented for work but was asked to return home due to his unvaccinated status and from that date was considered on approved [paid] leave, in line with the letter dated 22 December 2021. 25. From 4 January 2022 Council began working through the Procedure with unvaccinated employees. This process commenced in respect of Mr Blackwood from the date of his return from annual leave, on 17 January 2022 and involved Executive Managers who had unvaccinated employees within their business units and required those Executive Managers to individual [sic], role-based, risk assessments for each unvaccinated individual in their business unit to determine whether it was safe for the employee to return to the workplace unvaccinated. Some of these business units also undertook risk assessments at the business unit level in order to comply with their COVID Safe Action Plans. 26. The following attempts were made to contact Mr Blackwood to consult and engage with him in relation to the Procedure and a further specific risk assessment in relation to his role: (a) on 24 January 2022, Mr Lawler attempted to call Mr Blackwood's work mobile phone but received no answer and left a voicemail message; (b) on the same day, Mr Lawler sent Mr Blackwood a text message but did not receive a reply, nor was his call returned; (c) shortly after, Mr Lawler spoke to Mr Blackwood's supervisor, Mr Owen Mancell and asked him to try to get in contact with Mr Blackwood; and (d) Mr Mancell made contact with Mr Blackwood and asked him to contact Mr Lawler, but by 31 January 2022 Mr Blackwood had not contacted Mr Lawler. 27. Despite these multiple attempts, Mr Blackwood failed to respond or otherwise participate in the risk assessment process. 28. Despite Mr Blackwood's failure to participate, a risk assessment was still required to be conducted by Council in relation to Mr Blackwood's role on 31 January 2022 and 1 February 2022. Mr Lawler undertook this risk assessment, assisted by two other Council employees, Mr Scot Hedge (Manager, Park Operations at Council) and Mr Mark Hinson (Senior Safety Advisor at Council). 29. The risk assessment of Mr Blackwood's role found that the COVID-19 related risks to health and safety of having an unvaccinated worker performing the role were high and could not be effectively mitigated by controls other than vaccination, particularly as: (a) Mr Blackwood's role often required work to be performed in public areas, in close proximity to members of the public and other Council staff members; and (b) the Team Leader aspects of Mr Blackwood's role could involve minute-by-minute interactions while supervising, mentoring and upskilling staff. 30. The findings of these risk assessments, and the other risk assessments undertaken by Mr Lawler, were provided to the CET under cover of a memorandum dated 3 February 2022 summarising the outcome of the risk assessments and containing a recommendation regarding next steps. The recommendation was that Mr Blackwood be issued with a show cause letter and that the process in the Managing Exempt and Unvaccinated Workers Procedure be followed, as a result of the high risk found in the risk assessments. 31. …[T]he CET adopted the recommendation in the memorandum dated 3 February 2022 that a show cause process should be commenced in respect of Mr Blackwood's employment. 32. The CET considered several individual risk assessments for unvaccinated employees at the same time as Mr Blackwood's individual risk assessment. The consideration of those other risk assessments did result in some Council employees being allowed to return to work in Council workplaces unvaccinated, however this was [dependent] on their specific role and subject to their risk assessment and other control measures being in place. Mr Blackwood participated in a procedurally fair show cause process before he was dismissed 33. On 17 February 2022 Mr Jeremy Smith (who was acting as Mr Blackwood's manager while Mr Lawler was on annual leave) and Ms Amanda Graham (Manager, HR Partnerships) attempted to contact Mr Blackwood to arrange a discussion about the upcoming show cause process. Ms Graham also sent an email to Mr Blackwood's personal email address. 34. At approximately 9 am, on 21 February 2022, Mr Smith and Ms Graham had a telephone call with Mr Blackwood to advise him of the outcome of the risk assessment and that Council would be issuing him with a show cause letter. During the call, it was explained to him that this meant that Council was considering terminating his employment because the risk of him working while unvaccinated was too high and he would need to demonstrate why his employment should not be terminated due to his failure to comply with the Policy. Following this telephone call, a hardcopy of the show cause letter was hand delivered to Mr Blackwood by his supervisor Mr Mancell. 35. On 24 February 2022 a copy of Mr Blackwood's written response to Council's request that he show cause (dated 23 February 2022) was provided to Council. Mr Blackwood's response to the show cause letter confirmed that he did not intend to become vaccinated. Mr Blackwood did not provide any medical evidence that showed he had a medical contraindication or was otherwise unable to be vaccinated for medical reasons. Mr Blackwood's response did refer to the fact that since October 2021 he had been purchasing rapid antigen tests and testing himself at the start of each work week, however he did not propose to continue this practice should he be allowed to return to work nor did he propose to increase the frequency with which he undertook these tests. In any case, Mr Blackwood had been on annual leave and then on authorised [paid] leave and had not attended any Council workplaces since 23 December 2021. 36. Council considered Mr Blackwood's response and determined to terminate his employment due to his failure to comply with the Policy, given the Policy constituted a lawful and reasonable direction from Council. 37. On 3 March 2022 Mr Smith attempted to call Mr Blackwood to arrange a telephone meeting with him the following day but received no answer. Mr Smith then sent Mr Blackwood a text message seeking to arrange a telephone meeting for the following day and informing Mr Blackwood that he could bring a support person to that meeting. Later that evening, Mr Blackwood responded to Mr Smith via text message that he did not wish to meet because of family issues, to which Mr Smith sent a reply via text message, expressing sympathy and indicating that a hardcopy of the letter would be provided to Mr Blackwood instead. 38. A termination letter confirming this decision was delivered to Mr Blackwood by hand by Mr Smith and Mr Mancell on 4 March 2022. Nothing was said by Mr Blackwood during this meeting, including in response to the offer by Mr Smith to provide him with a reference. Following his dismissal, Mr Blackwood was provided with five weeks pay in lieu of notice and received payment of his entitlements on termination from the Council, including payment of his accrued but untaken long service leave." (Emphasis in original, footnotes omitted)

Legal principles

The principles to apply in the determination of the Application 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 Mr Blackwood to prove that his 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.

Consideration

Mr Blackwood's case came down to a series of propositions. They were not all made directly, and in some cases can be inferred from his evidence and submissions. I will deal with them in turn.

The reasonableness of the Policy

Mr Blackwood challenged the reasonableness of, or necessity for, the Policy. His contentions came down to two propositions. First, he observed that he is under few, if any, COVID-related Government restrictions. If the Government considers that he need not be restricted in his personal activities, on what basis does the Council say that he poses a risk to other employees or members of the public, requiring him to be vaccinated? Second, he should not be placed under pressure to take what he regards as an "experimental" vaccine.
Mr Blackwood's evidence and submissions in respect of these matters was put at a high level. He did not grapple with the detail of the case advanced by the Council as to its rationale for introducing the Policy.
Amy Noakes, the Executive Manager, Human Resources for the Council, stated: [1] "10. In early 2021 the Federal Government officially launched Australia's vaccination program and vaccinations against COVID-19 began being administered in Australia. 11. From mid-2021 I attended meetings of Council's Chief Executive Team (CET) where this was discussed. … 12. At this time Council staff who were able to work from home were doing so and the CET was considering whether full time remote working arrangements could be maintained long term. While Council had facilitated Council employees to, where possible, work from home during the course of the COVID-19 pandemic, including where required under Public Health Orders, Council held concerns that this was not sustainable long term for an organisation that serves the community. 13. The CET also discussed the potential for Council to introduce a policy that required staff to be fully vaccinated against COVID-19 in order to attend Council workplaces, as a risk control measure should remote working arrangements, for staff who were able to work from home, be deemed impracticable in the long term. 14. I understood the purpose of these CET discussions regarding vaccination was to ensure that Council was considering all options and taking appropriate steps to comply with its obligations under WHS legislation and put in place controls to manage the risks posed by COVID-19. Requiring vaccination was discussed as a potential control for managing the risk of serious illness and spread of COVID-19 amongst Council staff and the general public, particularly if all Council employees returned to performing work in-person at Council premises."
The Council's evidence included a detailed risk assessment which it had undertaken, which informed the creation and implementation of the Policy. Mr Blackwood did not seek to challenge the findings of that risk assessment, other than indirectly and at the high level referred to above.
More specific to Mr Blackwood's position, Mr Lawler stated: [2] "36. Across 31 January 2022 and 1 February 2022 I completed: (a) An Operating a COVIDSafe Workplace risk assessment in relation to the Parks & Recreation business unit. The purpose of this risk assessment was to assess COVID-19 work health and safety hazards in the context of the Parks & Recreation business unit and consider whether appropriate controls could be put in place to mitigate risks to unvaccinated Commercial Centres staff, generally. This was required under the business unit's COVIDSafe Action Plan, given its workers interacted with the community; and (b) An Operating a COVIDSafe Workplace risk assessment in relation to Mr Blackwood's role of Team Leader, Commercial Centres. The purpose of this risk assessment was to assess the COVID-19 work health and safety hazards specific to Mr Blackwood's role and consider whether appropriate controls could be put in place to mitigate risks to him as an unvaccinated staff member. … 41. The findings of these risk assessments indicated that the COVID-19 related risks to health and safety of having an unvaccinated worker performing Mr Blackwood [sic] role was [sic] high and could not be effectively mitigated by controls other than vaccination. 42. In coming to this view, I considered that Mr Blackwood's role often required work to be performed in public areas, such as parks, shopping precincts and playgrounds, in close proximity to other Commercial Centres team members and members of the general public. On an average day Mr Blackwood would spend approximately 95% of his shift working in close proximity to the general public or other Council staff. It is also not uncommon for Commercial Centres team members to be required to speak to, and be approached and spoken to by, members of the public while undertaking work in public areas. Further, Mr Blackwood's role required him to have regular face to face interactions with other members of the Commercial Centres team when performing relevant work and in his capacity as Team Leader, for example while participating in toolbox talks and providing staff with assistance, direction and instruction. These interactions could occur minute by minute while he was on shift. Mr Blackwood's role also required attend Council's depot every day where he would come in close contact with a wide variety of Council staff, not just those within the Commercial Centres function. …"
Mr Blackwood took issue with the estimate of 95% suggested by Mr Lawler, but did not otherwise greatly challenge this evidence. Mr Blackwood's response was more to the effect that changes could have been made to his role or duties that would have avoided or mitigated the risks identified by Mr Lawler. This is a contention to which I will return.
Mr Blackwood did not offer any evidence in support of his contention that COVID vaccines are "experimental". To that extent, it is not a matter to which I have attached particular weight. I note, however, the following observations of Deputy President Colman of the Fair Work Commission in Isabella Stevens v Epworth Foundation [2022] FWC 593: "19. Ms Stevens' representative made reference to various reports and articles said to cast doubt on the efficacy or safety of COVID-19 vaccines. But no expert evidence was led. In any event, the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy."
The Council drew my attention to Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (2021) 310 IR 399; [2021] FWCFB 6059 in which a Full Bench of the Fair Work Commission considered a requirement that had been introduced by Mt Arthur Coal Pty Limited that all workers at the company's coal mine had to be vaccinated against COVID-19 as a condition of site entry. The Full Bench observed: "85. We accept that the object and purpose of the Site Access Requirement is to protect the health and safety at work of Mt Arthur's employees and other people at the Mine. On that basis, the Site Access Requirement is prima facie 'lawful' because: • it falls within the scope of the employment, and • there is nothing 'illegal' or unlawful about becoming vaccinated." (Footnote omitted)
I am satisfied that the same observations could be made in respect of the Policy. Its purpose was to protect the health and safety of the Council's employees and the members of the public with whom they interacted. I find that the Policy was lawful and reasonable.

Mr Blackwood's medical condition

Mr Blackwood gave evidence that in 2009 he had a heart attack and that he remains on medication relating to his heart condition. He stated that he had spoken to his doctor who had expressed some concerns about Mr Blackwood being immunised against COVID-19 due to his heart condition. However, for reasons which are unclear, his doctor was unable or unwilling at the time to provide him with a medical contraindication certificate.
Mr Blackwood stated that he had raised these matters in a conversation with Mr Lawler in November 2021. He said further that he had told a number of people at the Council that his hesitancy about becoming vaccinated stemmed out of concerns for his heart condition.
Mr Lawler disputed Mr Blackwood's version of the November conversation. He stated that he was unaware that Mr Blackwood's heart condition was ongoing and, further, that Mr Blackwood had never raised his heart condition with him as being the reason why he did not want to be vaccinated. The other witnesses called by the Council - Ms Noakes, Amanda Graham (Manager, HR Partnerships) and Jeremy Smith (Manager, Park Assets - Planning, Design and Delivery) - stated that they were similarly unaware of Mr Blackwood having raised his heart condition as a reason for not getting vaccinated.
Further, Mr Blackwood did not produce any medical evidence to the Council (or to the Commission) regarding his medical condition. During the hearing Mr Blackwood acknowledged that it was a requirement of the Policy to produce medical evidence if that was the basis of a refusal to become vaccinated, and that he did not do so.
I am not persuaded that Mr Blackwood raised his medical condition with the Council as he claims. There can be no consequential unfairness with the Council having allegedly failed to take that medical condition into account.
I observe further that there is an element in Mr Blackwood's claim that as management and staff at the Council were aware that he had had a heart attack in 2009, they might have inferred that his heart condition was the reason for him refusing to be vaccinated. Suffice it to say, I do not accept that proposition.

Non-participation in the risk assessment process

Annexed to Mr Lawler's statement was an email he had received on 19 January 2022 from Karen Twitchett, the Council's Director Workforce & Technology. [3] In the context of the necessity to conduct risk assessments for unvaccinated staff, Ms Twitchett had stated: "In all circumstances it requires the positive participation of the employee in this process and a preparedness to accept the controls that may be required."
Mr Blackwood relied on this statement as reflecting a policy of the Council that risk assessments must be done in consultation with the relevant worker. He stated that he had not been involved in the risk assessment undertaken in respect of his position and in fact had never seen it.
Mr Lawler gave evidence that, with the aim of involving Mr Blackwood in the risk assessment process, on 24 January 2022 he placed two calls to Mr Blackwood's mobile telephone. When Mr Blackwood did not respond, Mr Lawler left a voicemail. Mr Lawler also sent Mr Blackwood an SMS. Mr Blackwood did not, however, make contact with him. Mr Lawler then asked Owen Mancell, Mr Blackwood's supervisor, to make contact with Mr Blackwood and ask him to call Mr Lawler.
Mr Mancell stated that he did call Mr Blackwood as requested. Later on 24 January 2022 Mr Mancell received a text message from Mr Blackwood in these terms: "Been thinking what u said about ringing Steve!! I won't be ringing him. He has not tried to ring me on work phone. I am on (Forced) holidays from him and work. Don't need stress, if he has something to say to me he can ring me on the Friday before I come back to work or I will have a talk with him when I come back to work on the Monday. He gave me a letter saying if not jabbed can't come back to work after 4th?? 2 days before Xmas, saying don't stress have a good Xmas??? He has had ample time to ring or have a chat but hasn't. I will check work phone each day, and if he rings me I will ring him back. Sorry don't want to get u in shit but just letting you no, I am trying to enjoy time off and not worry about this BS, till I come back. Speak during week." (Reproduced verbatim)
Mr Lawler stated that not having heard from Mr Blackwood he proceeded to undertake the risk assessment without Mr Blackwood's involvement.
In short, Mr Blackwood contended that in light of the "policy" evidenced by Ms Twitchett's email, that risk assessments must be done in consultation with the affected employee, the onus was on Mr Lawler to keep attempting to contact him in order to secure his involvement. Mr Lawler stated during the hearing that he felt that he had done enough to get Mr Blackwood involved. He stated that the "policy" on which Mr Blackwood relied was dependent on the employee engaging in the process.
I do not have much sympathy for Mr Blackwood's arguments in relation to the risk assessment. He had an opportunity to participate in the risk assessment process but refused to engage with the Council. The impression I formed was that Mr Blackwood was, at the time, acting out of pique. He cannot now argue that he was denied fairness by not being involved in the risk assessment process when through his own actions he deprived himself of the opportunity to become so involved.
I observe for completeness that the "show cause" letter dated 21 February 2022 that was addressed to Mr Blackwood stated: "Council has undertaken a risk assessment, in which you participated, to consider the controls which may reasonably be put in place and acceptable [sic] to Council."
Mr Blackwood rightly took issue with that statement, as he did not participate in the risk assessment. The Council conceded that the statement was in error. I do not see, however, that this has any bearing on the case.

Alternative duties or arrangements should have been provided

Mr Blackwood contended that after 15 years of service the Council should have worked with him to allocate him work, or amend its work procedures, so as to render vaccination unnecessary. That is, the risks identified by the risk assessment could have been avoided or mitigated if he was allocated particular duties that would minimise interaction with the public and co-workers, and other control measures were taken.
Mr Blackwood identified a number of aspects of his job which he claimed could be performed in isolation and away from members of the public. His evidence included a series of photographs of locations at which he said that work could be done. He stated that he could put out witches' hats or other barriers to minimise his interaction with members of the public. Rather than travelling in a work vehicle, he would use his own car to travel for work. He would use technology, such as the Council-issued iPad, to interact with other employees and contractors. To the extent he needed to participate in toolbox talks, he could do this via Microsoft Teams. Where he was required to personally interact with members of the public or other employees of the Council, he would wear a mask and ensure that he was socially distanced. All the while, Mr Blackwood would continue his current practice of taking a rapid antigen test (at his own cost) each week.
Mr Mancell accepted that it would be possible for some aspects of Mr Blackwood's role to be conducted through the use of technology or through selective allocation of work. On my observation, however, he gave this evidence very cautiously and created the clear impression that he did not regard it as feasible.
In large part, Mr Mancell's caution stemmed from safety concerns. He stated that in general terms, employees were assigned to teams of two and travelled together to and between jobs in a Council car. This was, in part, a safety measure.
Mr Mansell also expressed doubts as to how effectively Mr Blackwood could manage other employees or contractors without a presence "on the ground". He stated that it would be difficult to accommodate Mr Blackwood performing work other than in shopping centres, and that this would add to his own workload. Mr Mansell further stated that other employees might say that they should also have their duties tailored in a similar manner to that sought by Mr Blackwood, from which I inferred that he saw the potential for conflict to arise.
Mr Lawler gave evidence that it was a requirement of Mr Blackwood's role that he work in a team, in close proximity to the public. In his view, Mr Blackwood could not perform his role without interacting with members of the public. He expressed the view that his role could not be performed "remotely or virtually".
During his cross-examination of Mr Lawler, Mr Blackwood identified a number of the "key responsibilities" in his position description that he suggested might be performed in isolation. Mr Lawler conceded that this was a possibility. However, he stated that he did not consider those functions as comprising a large part of Mr Blackwood's job.
In answer to questions from me, Mr Blackwood accepted that as a result of not being vaccinated he cannot perform the full range of the responsibilities of his role and be compliant with the Policy. He contended, however, that it was incumbent on the Council to work with him to identify tasks that he could perform as an alternative to being dismissed after 15 years of service, until COVID-19 is no longer an issue.
The effect of Mr Blackwood's submission is that, as a matter of fairness, the Council should either have created a bespoke role for him, or permit him to perform less than the full range of the duties that he was employed to perform. I do not accept that.
I have already found that the Policy was lawful and reasonable. Mr Blackwood could have sought medical evidence to support what he now claims was the basis of his reluctance to be vaccinated. He could have engaged constructively in the risk assessment process, with a view to identifying adjustments that might have provided a means by which he could have remained employed. Mr Blackwood did neither of those things. (I observe that the two unvaccinated employees of the Council who engaged in the risk assessment process retained their employment.) In the circumstances, there is no basis to say that sole responsibility for maintaining the employment relationship fell on the Council.

Mr Blackwood was on sick leave

Mr Blackwood relies on the fact that he was on sick leave from 23 February 2022 and that he remained on sick leave at the time of his dismissal.
It is not entirely clear how Mr Blackwood relates this to the fairness or otherwise of his dismissal. During the hearing Mr Blackwood was unable to identify how him being on sick leave caused him any prejudice, noting that he had been on paid leave since 17 January 2022. It appeared to me that he had led the evidence in rebuttal of an assertion in the Employer's Reply filed by the Council on 13 April 2022 that "Mr Blackwood was not on sick leave when his employment was terminated".
The Council conceded that this statement was wrong. Ms Graham gave evidence that she had received an email from Mr Mancell on 24 January 2022 attaching a medical certificate for Mr Blackwood which she had "inadvertently missed". She stated that although the medical certificate was not "actioned", Mr Blackwood suffered no financial loss as he was on "special paid leave". She further observed that the medical certificate did not suggest that Mr Blackwood was not fit to engage in discussions or the risk assessment process, only that he should not attend for work.
Overall, I do not see that the fact of Mr Blackwood being on sick leave on and after 23 February 2022 has much bearing on the question of whether his dismissal was harsh, unreasonable or unjust. Consequently, I have considered the matter but it has not featured heavily in my determination.

Dismissal occurred the day before Mr Blackwood's 15th work anniversary

Mr Blackwood observed that he had been dismissed one day prior to his 15th work anniversary. He asserted that by doing so, the Council had deprived him of one month's payment of long service leave which would have become due on that day. He suggested that this may have motivated the Council to terminate his employment.
The Council gave evidence that Mr Blackwood's long service leave entitlements had been calculated up to and including the date of his dismissal. It submitted that had Mr Blackwood's dismissal been delayed by one day, to allow him to attain his 15th work anniversary, he would have been entitled to the accrual of long service leave in respect of that one extra day of service, which was quantified as being $8.43.
The Council's witnesses stated that to their knowledge Mr Blackwood's entitlements to long service leave, including any additional entitlements he might have accrued had the dismissal taken place a day later, were not relevant to the decision to terminate his employment. There is no reason why that evidence should not be accepted.

Alleged underpayment of entitlements

The allegation that he had been underpaid his entitlements on termination was another matter raised by Mr Blackwood. Mr Blackwood indicated that he intends to pursue the alleged underpayments in a different jurisdiction. For that reason, I do not propose to traverse the question of what entitlements he may have had on termination and whether he might have been underpaid.
The question is what, if any, relevance the matter has to the question of whether Mr Blackwood's dismissal was harsh, unreasonable or unjust.
As with the question of Mr Blackwood being on sick leave, his evidence regarding alleged underpayments seems to be directed towards challenging a statement in the Employer's Reply that "Mr Blackwood was still paid in respect of his accrued long service leave on termination of employment".
As it transpired, in late June 2022 the Council identified a discrepancy in the amount accrued and paid to Mr Blackwood in respect of his annual leave. An amount which was said to correct the discrepancy was paid into his bank account on 23 June 2022.
During the hearing, Mr Blackwood referred to the "convenience" of the Council having identified the discrepancy within a very short time prior to the hearing. However, Ms Graham explained how that circumstance had come to pass. While it is no doubt unfortunate that the discrepancy in Mr Blackwood's final pay was not identified and rectified in a timelier manner, I do not see that there is any basis on which to cast aspersions on the Council in this regard. More particularly, I do not see that the issue is relevant to the questions requiring determination in these proceedings.

Conclusions

During the hearing, Mr Blackwood confirmed that he was aware of the existence of the Policy and that it required him, subject to the outcome of a risk assessment, to be vaccinated. He said that he was aware that a failure to be vaccinated might result in his dismissal and, in effect, the fact that he was so dismissed in this case came as no surprise to him.
Having regard to all of the evidence and submissions, I am not persuaded that Mr Blackwood has made out his claim that his dismissal was harsh, unreasonable or unjust. Given my finding that the Policy was lawful and reasonable, and considering the manner in which the Council applied the Policy to Mr Blackwood's particular circumstances, I do not consider that the dismissal was unjust.
Mr Blackwood was aware of the requirements of the Policy. He could have, but did not, provide evidence that his medical condition precluded him being vaccinated. He had an opportunity to participate in the risk assessment conducted in respect of his role, but he did not do so. He had an opportunity to show cause as to why his employment should not be terminated. As the Council submitted, Mr Blackwood did not raise at that time the arguments he has presented to the Commission. Everything he now puts he could have put then. He did not engage when he was given the opportunity. The dismissal was not unreasonable.
The evidence does not demonstrate that Mr Blackwood has suffered any particular detriment as a result of his dismissal, beyond that which is suffered by any employee whose employment is terminated by their employer. The dismissal was not harsh.
In all the circumstances the only appropriate order is that the application be dismissed. I so order. Damian Sloan Commissioner

Endnotes

Statement, Amy Noakes, 15 June 2022
Statement, Steve Lawler, 16 June 2022
Statement, Steve Lawler, 16 June 2022, Annexure SL-3 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: 07 July 2022

At a glance

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Judgment (14 paragraphs)

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Cases Cited (10)

Cited By (2)