Fair Work Commission|2022-07-08

Bradley John Dean Regional Express Holdings Ltd [2022] FWC 1448 (8 July 2022)

The attached document replaces the document previously issued with the above code on 8 July 2022 to correct minor typographical and formatting errors.

s.394 - Unfair dismissal

[1] Bradley Dean has made an application, pursuant to s.394 of the Fair Work Act 2009 ("Act"), in which he seeks an unfair dismissal remedy in relation to his termination of employment by Regional Express Holdings Ltd ("Rex" or "REX").

[2] As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that the application was made within time; Mr Dean is a person who was protected from unfair dismissal; Rex is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.

[3] Rex is a company described as being "Australia's leading regional airline with routes to over 65 ports in all states and territories. It employs approximately 1,486 staff, and prior to the COVID-19 pandemic, transported over 1.2 million passengers per annum". Mr Dean commenced employment with a predecessor to Rex, Hazelton Airlines, in May 1994. In August 2002, he was employed by Rex, as a successor employer. Mr Dean was informed he was dismissed in a meeting on 1 December 2021, with written confirmation following the next day. Thus, in combination, Mr Dean's employment spanned about 27 years. In the time preceding the dismissal, Mr Dean was employed as a SAAB 340 Captain (Year 10) Check Captain (Grade 2) under the terms of the Regional Express Pilots' Enterprise Agreement 2014 ("Pilots EA").

[4] The dismissal arose against the background of the failure of Mr Dean to be vaccinated against COVID-19, pursuant to requirements in the Rex Group COVID-19 Mandatory Vaccination Policy ("Policy"). A distinguishing factor in this case, as against so many other vaccination-related dismissals that have come before the Commission, is that Mr Dean became vaccinated post-dismissal despite his earlier anxiety about being vaccinated. The evidence indicated that Mr Dean became vaccinated with the Novavax vaccine in early-2022, at effectively the first opportunity following its approval for use in Australia by the Therapeutic Goods Administration. Mr Dean had his first Novavax vaccination on 17 February 2022 and his second on 10 March 2022, with the result he was then relevantly fully-vaccinated for the purposes of the Policy.

[5] The evidence made it plain that, around the time of the dismissal, both parties very much wanted the employment to continue, notwithstanding the fact that Mr Dean was not vaccinated in accordance with the requirements in the Policy. Mr Dean was not only an employee of very long-standing, he was also a well-regarded one. For example, Mr Dean had been the recipient of an "Outstanding Achievement" award, and the dismissal letter referred to Mr Dean's "dedicated service" and advice that the decision to dismiss him had "not been made lightly". The dismissal had proceeded against the background of what might be described as various proposals by Mr Dean and one proposal by Rex that had been made to attempt to preserve, by one means or another, an ongoing employment relationship in the context of Mr Dean's status as an unvaccinated employee. For reasons that I will later address, those proposals and counterproposals ultimately did not result in a preservation of the employment relationship.

[6] Both parties adduced detailed written witness statements of evidence pursuant to the directions, but not all those who provided statements were required for cross-examination in the hearing. In Mr Dean's case, the evidence was given by:

Mr Dean, on his own behalf;
Dr Pia Bjorklund, Mr Dean's general medical practitioner and his Designated Medical Examiner ("DAME") for his annual pilot-specific medicals; and
James Mattner, Senior Industrial Officer with the Australian Federation of Air Pilots ("AFAP")

[7] In Rex's case, the evidence was given by:

James Davis, Independent Director on the Board of Rex;
Paul Fisher, General Manager Flight Operations and Chief Pilot of Rex; and
Paula Tran, Human Resources Manager of Rex.

[8] Mr Davis, Mr Fisher and Ms Tran were not members of the Rex management committee which made the decision to dismiss Mr Dean, albeit Mr Fisher and Ms Tran gave input to that committee about Mr Dean. Irwin Tan, General Manager Corporate Services of Rex, whose name was on a number of relevant written communications and who participated in, and/or chaired, the meeting in which Mr Dean was dismissed, did not give evidence in the proceedings.

[9] Although Mr Dean initially had private solicitors in connection with the making of his application for an unfair dismissal remedy, he self-represented throughout the proceedings. Mr Dean's presentation of his own case, including the way he conducted the cross-examination of Rex's witnesses, was (largely) atypically professional and focussed for a self-representing party. I asked Mr Dean to provide the speaking notes that he used for his closing submissions, which he later did. The speaking notes Mr Dean provided just does not reflect or capture the compelling eloquence of Mr Dean's oral delivery of his closing submissions before me about why he considered the dismissal was unfair and why he should be reinstated. Rex was represented by counsel. Rex's submissions, in a way that left no base uncovered in terms of the justification for the Policy and why there was a valid reason for the dismissal, addressed the reasons that led to the decision to dismiss Mr Dean and in support of the contention that the dismissal should not be found to be harsh, unjust or unreasonable, and why his application for an unfair dismissal remedy should be dismissed.

[10] It is unnecessary for the purposes of this decision to traverse the history of vaccination requirements in Australia that emerged in response to the COVID-19 pandemic or the decision made by Rex to implement the Policy. The salient matter is that Rex determined to implement the following vaccination requirements as part of the Policy:

Rex requires all existing frontline customer-facing staff members to be fully vaccinated against COVID-19 by 1 November 2021 and all new frontline staff members employed after 1 November 2021 to be fully vaccinated against COVID-19 prior to the commencement of employment.

Frontline staff includes, Pilots, Flight Attendants, Customer Service Officers at the Airports and anyone that has regular contact with the general public and/or passengers in the course of their duties. It does not include staff that have casual or limited contact with the public like our catering staff or ramp staff.

Frontline staff who are on unpaid leave or long term sick leave who are returning to work after 1 November 2021 will need to be fully vaccinated prior to their first day back to work.

Where a staff member does not complete and submit the Schedule A Mandatory COVID-19 Vaccination Declaration/Objection Form or provide evidence of vaccination before 16 October 2021 without a valid reason, they will be considered not to have complied with a reasonable and lawful direction and disciplinary action, up to and including termination of employment or engagement, may result. Where all other considerations and/or alternatives for redeployment have been exhausted for a frontline staff member who cannot or does not wish to be vaccinated, termination of employment or engagement may result."

[11] Schedule B of the Policy explained matters about its operation in the format of various frequently asked questions ("FAQs"). One of the questions and answers in the FAQs was set out as follows:

"7. What provisions will be made for frontline staff who cannot or do not wish to be vaccinated?

Staff members will be required to complete a form outlining their objection either based on medical or other reasons. Staff should fill in the COVID-19 Declaration/Objection Form attached to the Policy ASAP but before 16 October 2021. Staff will be required to provide reasons why they cannot be vaccinated, including evidence in the form of a letter from a suitably qualified medical practitioner if objecting based on a medical reason. Further evidence may be requested to support the objection.

Rex will assess the staff member's situation to determine if any other safety measures could be implemented or review other suitable roles (where available) for the staff member to be re-deployed.

Given the purpose of this policy and the application, it will be unlikely that a front line staff member could continue work in the front line if unvaccinated. However, each situation will be assessed on a case-by-case basis.

If no suitable role can be found the staff member will be required to meet the requirements of the policy to continue working in the frontline. If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date. If vaccination is not an option for the staff member then the staff member may be terminated due to not meeting a work requirement.

All staff who fail or refuse to complete the Declaration/Objection Form by 16 October 2021 will be deemed to be unvaccinated for the purposes of this Policy.

13. Will the company provide for staff to delay vaccination until they are able to obtain their preferred vaccination type?

No, the requirement is for frontline staff to be vaccinated by 1 November 2021.

There are three vaccines being used in the Australian roll out that have been approved by the Therapeutic Goods Association (TGA), these are Moderna, Pfizer and AstraZeneca. Individuals would be responsible for discussing the options with their medical practitioner if they have concerns.

Unvaccinated frontline staff will not be rostered for duty from 1 November 2021."

[12] As may be seen from the preceding extracts of the Policy, all Rex's employees were required to complete and submit the Schedule A Mandatory COVID-19 Vaccination Declaration/Objection Form ("Declaration Form") or provide evidence of vaccination before 16 October 2021. All employees were advised that a failure to do so would be considered as non-compliance with a reasonable and lawful direction, and that disciplinary action may result including dismissal. Among other matters, the Declaration Form that Mr Dean submitted indicated he was not vaccinated.

[13] Based on what Mr Dean had written in his Declaration Form, Rex's understanding was that he would not be fully vaccinated by 1 November 2021 in accordance with the requirements of the Policy. As such, Mr Tan sent correspondence to Mr Dean on 26 October 2021 which invited him to show cause why he should not be dismissed on the grounds of non-compliance with a lawful and reasonable direction. Mr Tan's correspondence advised that once Mr Dean's response to the show cause letter was received, Rex would consider and make a decision based on all relevant information. The show cause letter further advised:

"As outlined in the Policy, this means that from 1 November 2021:

- you are not able to attend for work because you are not ready willing and able to meet all the requirements of your position;

- you will not be paid any pay until you are ready, willing and able to attend for work (which means being vaccinated and providing evidence of this);

- if you have accrued annual leave or long service leave you may be allowed to access that leave while this issue is being resolved. You may also access days in lieu (DIL) you may have available. Please contact Manager if you wish to access accrued leave; and

- we will explore options with you, which may include (if applicable) alternative duties, or the taking of leave or the cessation of your employment. The transfer into a short term arrangement as a simulator instructor is not currently an option. However, after receiving your response to this show cause the Company will confer with you on any other possible options." (my emphasis)

[14] Relevantly, thereby, Mr Tan's advice to Mr Dean in the show cause letter was that Rex would explore options with him, which may include: (a) alternative duties; (b) the taking of leave; or (c) the cessation of his employment. Mr Tan also advised that the transfer into a short-term arrangement as a simulator instructor was not currently an option, but that Rex would "confer" with him on any other possible options after receiving Mr Dean's response.

[15] On 2 November 2021, with drafting assistance from Mr Mattner, Mr Dean sent a lengthy response to the show cause letter including opening reference to his 27 years of loyal service. Mr Dean referred to his disappointment about his endeavours (two emails and one telephone call) to Rex's human resources ("HR") section to try to discuss his concerns around the vaccination issue, where "no one bothered to contact me to address those concerns directly" and where he had heard nothing from HR after his email dated 13 October 2021 asking for a copy of Rex's risk assessment. There was no evidence of any reply concerning Mr Dean's request for a copy of a risk assessment. (Separately, Mr Mattner's evidence indicated that the AFAP had requested a risk assessment for pilots generally, and Ms Tran's evidence indicated that several other employees had asked for a risk assessment, but Rex considered and relevantly advised Mr Mattner, for the reasons set out in Ms Tran's evidence, it did not have to provide a risk assessment.)

[16] As to the Policy's requirement for Mr Dean to have had two vaccination doses by 1 November 2021, Mr Dean's response to the show cause letter continued:

"4. ... I would like to point out that I am not opposed to having a vaccine to protect myself and the community from COVID-19. However, I am experiencing extreme hesitancy with the current vaccines that are available. I have been doing a lot of research, so that I can make an informed decision. I am currently 'pooling all the facts', to assess all the available options before making a final, informed decision. It is important to note that a close personal friend of mine died after having a COVID-19 vaccine. I also know of many others that have had significant adverse reactions. It has been well documented and is on the [Therapeutic Goods Administration] website that the possible side effects of the vaccines include Myocarditis, Pericarditis, and blood clots, just to name a few. If I were to suffer any of these, there would be significant consequences.

I would likely immediately lose my Class L medical and in turn my Airline Transport pilots Licence. If that eventuated, I suspect that I would struggle to ever regain either of those two certifications. As such, my career in aviation would abruptly be finished, with little or no warning, and no recourse."

[17] Mr Dean then set out some matters around the operation of the Policy, emphasising that while he was a frontline employee for the purposes of the Policy that "there are always exceptions to nearly any rule"; here, Mr Dean wrote, 80 per cent of his duties comprised (non-frontline) simulator work and, for example, the employees within Rex's Australian Airline Pilot Academy ("AAPA") were not required to be vaccinated, but were required to wear face masks. Mr Dean asked rhetorically why he would not be considered to be in a similar position as AAPA staff?

[18] Mr Dean then turned to the other 20 per cent of his (frontline) pilot work, pointing to his limited physical contact with the passengers and available safety measures.

[19] Mr Dean said there was "a clear alternative", asking that his simulator role potentially be expanded temporarily, to allow him to do more work there. In that regard, Mr Dean noted that, in the past, Rex had allowed several check captains to be on simulator-only duties due to medical issues. If Rex did not consider that undertaking full-time simulator duties would be feasible, Mr Dean suggested, as a further alternative, that there are other suitable roles where he could be utilised to "top up" the remaining 20 per cent of work.

[20] Mr Dean canvassed some other safety measures that might be considered, if his current role "remained as is".

[21] Mr Dean's response to the show cause letter concluded with the following summary:

"I am asking REX to give genuine consideration to my circumstances. As I have already stated, based on the experiences of friends, I am fearful of the long term health issues from the vaccine. I am also worried about the potential to be forced out of the aviation industry if I lose my licence due to a severe adverse reaction. In addition to that, given my history with the company, I would once again stress that I believe the current threat of termination is extremely harsh, and completely uncalled for in my situation. Rather I ask Rex to consider all possible opportunities, including temporary changes to my current role and/or introduction of additional control measures, to allow more time to consider all my options and extend my long and loyal career that I have forged with Rex. I look forward to your reply as a matter of urgency. Should there be any further detail that you require, I would be prepared to meet with you to discuss the matter further. ..."

Rex's response to Mr Dean's response to the show cause letter

[22] On 16 November 2021, Mr Tan wrote to Mr Dean advising that management had considered his response to the show cause letter. Among other matters, Mr Tan advised that Rex had noted Mr Dean's comments about potentially being an exception to the rule in being classified as a frontline employee given his estimate of 80 per cent simulator duties, but pointed out that Mr Dean's role of Saab Captain (year 10) Check Captain (Grade 2) required flying and, therefore, was frontline. Mr Tan further advised that Rex disagreed with the proposed measures Mr Dean had outlined in his response to the show cause letter, explaining that these measures could not be guaranteed in everyday operations and nor could Rex guarantee that his workload would remain predominantly simulator-based. Mr Tan advised, as a result, in accordance with the Policy, Mr Dean was required to be vaccinated. Mr Tan noted that, to that point in time, Mr Dean had failed to comply Policy in not taking steps to be vaccinated by 1 November 2021. Mr Tan's letter then turned to two further matters.

[23] The first matter was advice that, in consideration of Mr Dean's personal circumstances and his years of service, Rex was allowing extra time (to 30 November 2021) for him to make a decision about obtaining a vaccination.

[24] The second matter was advice about an alternative position. Mr Tan's letter read:

"I understand the HR Manager contacted you regarding an alternative role, specifically a casual Simulator Instructor. Given the Public Health Orders in Victoria and the requirements for authorised workers to be vaccinated you would be unable to work in the Melbourne Simulator; therefore, this would be a Wagga Sim position only. If this is something that would be of interest to you we request that you submit a formal expression of interest to Human resources at [email address] by no later than 30 November 2021. Please note this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement."

[25] Mr Tan's letter then addressed matters related to applying for alternative (non-frontline) positions through the Rex Careers page. The letter also explained that Mr Dean would not be able to work during the period of the extension, and explained matters around leave without pay and/or accessing paid leave entitlements. Mr Tan's letter concluded:

"Following receipt of your correspondence regarding the points outlined in this letter the Company will make a decision regarding your employment going forward. Please contact me should you have any questions or require any further clarification on anything outlined in this letter."

[26] Mr Dean did not contact Mr Tan about anything outlined in the letter. He determined to write to Rex's Executive Chairman, Lim Kim Hai, requesting a review of his individual circumstances as they related to the Policy - as I will next outline.

Mr Dean's letter to the Executive Chairman of Rex

[27] Following receipt of the preceding correspondence from Mr Tan, Mr Dean "reluctantly" wrote to the respondent's Executive Chairman, Lim Kim Hai, on 24 November 2021, seeking a review of his individual circumstances as they related to the Policy. Mr Mattner assisted Mr Dean in drafting that letter. Segments of Mr Dean's letter to Mr Lim traversed matters that were similar to the matters raised in his earlier response to the show cause letter. Mr Dean also indicated that he was currently working with his doctor to find a solution to "this problem". Mr Dean expressed concern that Rex's management: (a) seemed to have simply dismissed his concerns, without much consideration; and (b) offered him a permanent change to a casual simulator instructor position (not something Mr Dean said he had expected or would ever want, due to his love of flying).

[28] Mr Dean then put forward various proposals/options, so that he "can, in due course, comply with" the Policy. For example, Mr Dean proposed that:

for a period of five months (until 31 May 2022), he would work only in the Wagga Wagga simulator (and potentially in the Sydney simulator, once operational);

he would continue at his current pay rate (Grade 2 Check Captain);

to increase simulator utilisation, Mr Dean indicated he would be keen to take on type rating training, without any salary increase (i.e., without increasing to the Grade 3 Check Captain pay rate);

to further increase his productivity, he would also take on the role of the Wagga Wagga Simulator Coordinator with no change/increase to his current salary rate;

once he was fully vaccinated, he would return immediately to full flying duties but would continue the additional duties as agreed until 31 May 2022.

[29] Mr Dean's letter to the Chief Executive continued that if it there was agreement to "adopting a temporarily reconfigured role for a maximum of 6 months" he would have welcomed the opportunity to fill that role, and continue to actively work for the respondent. Mr Dean's letter elaborated various matters in support of the proposed reconfiguration, including agreement with colleagues to do swaps. Mr Dean's letter concluded: "I have already offered several possible productivity gains that would arise from my proposal, at no cost to REX, as a sign of my 'good faith' in this matter. Hopefully, with some additional discussion on the precise details of my proposal, a suitable final outcome can be agreed upon. I remain a loyal employee and thank you for your time in considering my situation."

[30] Despite Mr Dean expressing his hope to Mr Lim that "with some additional discussion on the precise details" a suitable outcome could be agreed, no additional discussion ensued with anyone before the dismissal decision was later conveyed. It may be noted, in such respects, that Mr Dean's evidence indicated that he felt sure that discussions with Mr Fisher would have achieved a mutually-agreed outcome that would have been suitable to Rex. As I will later outline, there is evidence to support a conclusion that if discussions had occurred, this would have been the case.

[31] Mr Tan responded to Mr Dean's letter on 26 November 2021, advising that Mr Lim and the management committee had reviewed and carefully considered all the information, as well as Mr Dean's previous response to the show cause letter. Mr Tan advised that the management committee's position "remains unchanged on the matter as outlined in the correspondence sent to you on 16 November 2021." Mr Tan further advised of matters around a Teams meeting "on 1 December 2021 to communicate the decision by the Management Committee regarding your on-going employment", including advice to Mr Dean about his entitlement to have a support person present at the meeting.

[32] Mr Dean fully considered, believed, and expected that the reference in Mr Tan's letter to a meeting on 1 December 2022 to communicate the decision by the management committee regarding his "on-going employment" to be just that: a meeting about his on-going employment. In that regard, and notwithstanding the fact that the management committee's position was unchanged (i.e., that he was required to be vaccinated under the Policy given his existing role involved frontline pilot duties), Mr Dean's most recent correspondence to Mr Lim on 24 November 2021 concluded with a proposal that discussions be held. To contextualise this, Mr Dean wrote that so as to try to resolve this issue in a positive fashion and to assist in that aim "... can I suggest that a telephone or video call be organised for some point in the coming week, or soon after, in which the specifics of my proposal can be discussed in far greater detail. ... Hopefully, with some additional discussion on the precise details of my proposal, a suitable final outcome can be agreed upon." I re-emphasise, at this point, that the initial show cause letter had indicated that Rex "will confer" with Mr Dean about options following receipt of his response to the show cause letter, but Rex had not conferred with Mr Dean after that response had been received or at any time thereafter (the two telephone calls with between Ms Tran and Mr Dean could not be characterised as conferring with him, as I will later outline).

[33] To further contextualise matters, Mr Dean's evidence and submissions also indicated that he genuinely held strongly to Rex's ethos as set in the Rex Value Statement, and expected it would inform Rex's approach. He highlighted aspects which read:

"We accept that sometimes staff may make mistakes while trying to act in the best interest of the Company"

"We value open communication and will strive to create an environment that removes silo mentalities by embracing full transparency"

"Staff members have a right to be heard regardless of their position"

"Staff members are encouraged to directly contact the members of the Management committee and Board if they feel their immediate supervisors are being a barrier".

[34] Mr Dean felt reaffirmed in such views given the comments made by Rex's Deputy Chairman, The Honourable John Sharp AM, in a media release that was issued on 21 September 2021. In the media release titled "'Determined' to keep unvaccinated staff", Mr Sharp was quoted as saying matters including: that about 30 of Rex's 1,500 staff were opposed to getting the vaccine for medical or "other reasons"; that, where possible, unvaccinated workers would be moved to positions where they did not interact with customers; that Rex was determined to keep staff; that if unvaccinated staff can be redeployed to another area where they are not customer-facing, Rex will do that to keep them in a job; and that "We hope there won't be anybody who loses a job out of this."

[35] A videoconference meeting was held on 1 December 2021, which was attended by Mr Dean, Mr Mattner, Mr Tan and Ms Tran. While I will return to what unfolded in the meeting, Mr Dean was dismissed.

[36] On 2 December 2021, Mr Tan sent a letter to Mr Dean confirming his dismissal. That letter relevantly read:

Rex Group Mandatory COVID-19 Vaccination Policy, Termination of Employment

We write in respect of the Rex Group COVID-19 Mandatory Vaccination Policy (Policy) and refer to our previous communications with you about the Policy, particularly our most recent letter dated 16 November 2021, and to our meeting with you on 1 December 2021.

Alternative Roles (Non-Frontline/Customer Facing)

As set out in the letter of 16 November 2021, whilst the Company considered you failed to comply with the Rex Group COVID-19 Mandatory Vaccination Policy, specifically not taking steps to obtain your COVID-19 Vaccination by 1 November 2021, the Company gave you a further opportunity to apply for a casual Simulator Instructor position or existing advertised non-frontline roles within the Company by 30 November 2021. You were advised that if you did not wish to apply for an alternative role or did not find any of the advertised positions suitable or were unsuccessful in securing an alternative role, the Company will make a decision about your employment going forward.

Unfortunately, you have not secured an alternative role.

The Company has carefully considered all of the information available to it including the matters set out in the letters from you and discussed with you at the meeting on 1 December 2021; and we confirm there is nothing in that information that changes the Company's position on the matter. We appreciate you taking the time to provide a personal response, explaining your circumstances and proposing alternative options for consideration by the Company. Unfortunately, for the reasons explained at our meeting with you, those options are not viable.

Accordingly, as communicated with you at the meeting, the Company has made the decision to terminate your employment on the grounds that you are unable to perform in the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2) because you have not met the requirements of the Policy to be fully vaccinated against COVID-19 by 1 November 2021.

Our decision to terminate has not been made lightly, particularly given your length of dedicated service with the Company. However, the Company expects all of its employees to comply with the Policy and your failure to do so means that you cannot meet the inherent requirements of your role. Your employment as communicated is terminated with immediate effect 1 December 2021.

Whilst your employment ended on the date outlined above, in accordance with the Regional Express Pilot's Agreement 2014, Rex will provide you with 4 weeks' pay to be paid in lieu of notice and a further week for being over 45 years of age and having 2 years of service.

As communicated to you at the meeting, the termination of your employment in these circumstances does not preclude you from applying for employment with the Company in the future in the event that you do become fully vaccinated or if circumstances otherwise change. We thank you for your service with the Company and wish you well in the future."

[37] In Mr Dean's written outline of submissions, which were filed and served pursuant to the directions, the first thing he noted was that he was seeking reinstatement. Among other matters, Mr Dean noted he been employed by Rex and its predecessor for over 27 years. He explained that prior to Rex releasing the Policy on 8 October 2021, he had developed vaccine hesitancy, and had tried to work with Rex and to explain his situation. Following the dismissal on 1 December 2021, he had continued to work through his vaccine hesitancy issues, while consulting with his doctor, and has now been able to comply with the Policy such as to now be fully vaccinated - having had his first COVID-19 vaccination on 17 February 2022 and the second on 10 March 2022.

[38] Mr Dean submitted that the dismissal was harsh, unjust and unreasonable. His case is not about whether Rex's mandate was lawful, but it is a question as to whether the direction was reasonable given his particular circumstances and how Rex had handled his situation. Mr Dean submitted that "I'm not an anti-vaxxer but Rex is treating me that way", in circumstances where he had the personal issue of significant anxiety towards the vaccine as confirmed by his doctor/designated aviation medical examiner, Dr Bjorklund. Mr Dean said he unfortunately had developed extreme anxiety resulting in vaccination hesitancy when a friend died after receiving the vaccine; he then had some family members suffer adverse reactions, which further exacerbated the situation. Mr Dean referred to the occasions where he had twice advised Rex in writing that he was not opposed to vaccination as well as in a telephone call with Ms Tran; he had been working with Dr Bjorklund and they had a plan moving forward concerning his vaccine hesitancy.

[39] Rex's reason for the dismissal was that he was unable to perform the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2). Mr Dean submitted that when he was first employed by Hazelton Airlines (the predecessor employer), 100 per cent of his role was flying. Over the years, that percentage had significantly changed such that the flying portion of his role was approximately 20 per cent, with the rest of his duties in the Flight Simulator as a Check Captain (being duties he could perform unvaccinated under the Policy).

[40] Mr Dean submitted that "Rex terminating me immediately was extremely harsh". He was not able to have the vaccination immediately after Rex mandated it in the Policy, but he did not refuse to be vaccinated. He had sought to engage with Rex about the measures by which he could continue to work unvaccinated while he worked through his anxiety, and ultimately offered to take leave that he had accrued before returning to work after being vaccinated. In this context, Mr Dean submitted that his conduct did not constitute serious misconduct such as to be given the same weighting as theft, fraud, assault, or intoxication at work, requiring immediate termination without notice. (I interpose to note that, in fact, Mr Dean was given a payment in lieu of notice, albeit the dismissal took immediate effect.) Mr Dean submitted that he never refused to comply with the Policy, and that all he needed was more time due to a personal medical issue. The final version of the Policy was published on 8 October 2021, requiring all frontline employees to be fully vaccinated by 1 November 2021. This placed unreasonable time pressure on him, as it gave only 23 days' notice and a minimum of 21 days was required between doses. Mr Dean submitted that: "If you have a problem that you need to act on, it is not possible to act on that until the final policy is published."

[41] Mr Dean submitted there were reasonable means by which his employment could have been maintained for a temporary period, with several options available to Rex which he had proactively offered. Mr Dean submitted that one of the simplest solutions was to utilise him only in the simulator, on a temporary basis, while he sorted out his personal medical issue. With approximately 80 per cent of his work in the simulator, it would have required only a small roster change to make this work. Additionally, two of Mr Dean's colleagues offered to take his flying duties to free-up extra simulator duties where he and the two colleagues had often arranged shift swaps in the past to help each other out. Mr Dean had been proactive in offering several solutions to Rex, under the belief that he did not want to leave Rex short of a check captain and Rex would be more than happy to work with him to find a solution in circumstances where it was always his intention to find a solution.

[42] Mr Dean submitted that, despite his efforts to have a meeting, he did not even get a telephone call from either of his direct managers, the chief pilot Mr Fisher or Simon Vanstone, the Manager Training and Checking - both of whom he had known and worked with for over 20 years. The only meeting was the dismissal meeting on 1 December 2021, which Mr Dean described as having completely "blindsided" him, as he was expecting to discuss his situation and to work on a possible solution. This was in circumstances where the reason for the meeting on 1 December 2021 had been described to him (in Mr Tan's correspondence) as one "regarding your on-going employment".

[43] Mr Dean submitted there was precedent for Rex to grant his request, in the circumstances of him being temporarily medically unable to fly because, over the years, Rex had allowed check captains to perform simulator-only duties on a temporary basis when those employees had a medical issue preventing them from flying. It was discriminatory why this was not also made available to him.

[44] Mr Dean noted that Rex was happy for him to work unvaccinated in the simulator because it offered him a casual position in the simulator, unvaccinated. However, the casual simulator position Rex offered was to be a permanent change of employment, not a temporary placement. As a result, Mr Dean would have had to give up flying, full-time employment, and seniority. This offer of the casual position did suggest, however, that there was regular work that could have been temporarily allocated to him, whilst he was overcoming his anxiety prior to being vaccinated.

[45] All options suggested by Mr Dean were rejected, in circumstances where it would have been reasonable as a means of achieving the outcome of becoming vaccinated, whilst remaining productive, and allowing reasonable accommodation of his anxiety while working through this with Dr Bjorklund. He had been positive that this was only a temporary delay and that soon he would be able to resume full flying duties.

[46] Mr Dean submitted that another option that he put to Rex was to use his accrued annual leave/long service leave to allow him to work toward becoming vaccinated and, once vaccinated, return to work - which the Policy allowed. At the dismissal meeting, Mr Dean offered to take accrued annual leave and long service leave, which would have allowed time to around the 20 February 2022 to get over his anxiety and be able to return to work fully vaccinated. In response to this leave proposal, Mr Tan said he was unable to make that decision and paused the meeting for an hour so he could discuss this with the Executive Chairman, Mr Lim. When the meeting reconvened, Mr Tan advised Mr Dean that the Chairman's decision was unchanged and that he was to be terminated immediately, without notice. Mr Dean submitted that, had he been granted the leave, he could not, within the meaning of s.387(a) of the Act, have been considered a threat to the safety or welfare of any Rex employees (or customers).

[47] Mr Dean noted that employees are given many different policies that must be complied with, and it would be expected that an employer will follow its own policies. Mr Dean submitted it was unjust for his employment to be terminated in circumstances where Rex had not complied with its own policies leading up to the dismissal. Mr Dean drew attention to that part of the Policy which explained (in the FAQs section): "If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date." Mr Dean submitted that it is thereby clear that he should have been able to access accrued leave up to and including leave without pay if required until he was fully vaccinated.

[48] Mr Dean noted that the dismissal letter included advice that "... the termination of your employment in these circumstances does not preclude you from applying for employment with the Company in the future in the event that you do become fully vaccinated ...". Mr Dean submitted that this implies there was no issue with his employment, except for his vaccination status. Mr Dean submitted: "I am now fully vaccinated and am complying with Rex's vaccination policy, why do I need to reapply, why can't I be reinstated to my original position?". As to this, Mr Dean further submitted that the implications of reapplying and starting his employment with Rex again are significantly harsh because he would lose his seniority number, his Wagga Wagga base, and 55 weeks of sick leave. Mr Dean's submissions pointed out that, apart from employment with Rex, he is unable to gain similar and suitable employment in Wagga Wagga; he would have to relocate to another city to seek employment with another airline, which would involve significant personal and financial hardship.

[49] Mr Dean submitted that, at the time of the dismissal, he was trying to comply with the Policy, and that he had been "honest, upfront, and willing to work with Rex". Mr Dean submitted that, with the benefit of hindsight, he could possibly have expressed/communicated himself better or differently in some of his correspondence. He submitted that he never wanted to lose his job and was happy working for Rex. Mr Dean submitted (uppercase in original): "As I said I am NOT an employment Lawyer but what I am is an excellent Pilot and Check Captain with an impeccable record of passionate and loyal service to Rex."

[50] Rex made detailed submissions on various matters relevant to the application, for example, against the background of the evidence of Mr Davis which comprehensively detailed the exigencies and developments that informed the Board's decision to introduce the Policy; the evidence of Mr Fisher and Ms Tran also detailed similar matters in aspects of their evidence. Rex also addressed in detail reasons why Mr Dean's failure to be vaccinated constituted a valid reason or reasons for the dismissal. To the extent that Rex's submissions addressed matters around the rationale for the Policy and there being a valid reason or reasons for the dismissal, I will not summarise those submissions. There are three reasons for this:

(a) in the hearing, Mr Dean did not contest the Policy itself as it concerned the vaccination requirement;

(b) even if the Policy had been contested by Mr Dean in these proceedings, the Policy was, on the evidence and my acceptance of Rex's submissions thereto, unassailably open to Rex to introduce and implement following the consultation processes that it undertook; and

(c) Mr Dean's failure to comply with the Policy's vaccination requirement objectively grounded a valid reason or reasons for his dismissal, as I will later discuss in addressing the criterion in s.387(a) of the Act - and this is so notwithstanding my acceptance of Mr Dean's fears and anxiety about being vaccinated. As noted in the recent decision of Easton DP in Stuart Tween v Qantas Airways [2022] FWC 1594 at [124], that airline industry employer had introduced its vaccination policy during a global pandemic for cogent medical reasons and the vaccination fears of the applicant in that case did not exempt him from compliance.

[51] Rex submitted that Mr Dean's application should be dismissed because: it had a valid reason for dismissal; the dismissal was not otherwise harsh; and a fair go all round was afforded. To the extent Mr Dean relied on an alleged lack of proper consideration concerning his personal circumstances, such matters are to be resolved by reference to the circumstances at the time of his dismissal on 1 December 2021 and not by Mr Dean's subsequent vaccination. What is required, Rex submitted, is a close examination of the facts leading to dismissal with "the object of avoiding hindsight illusion".

[52] Rex drew attention to Mr Dean's employment history and the responsibilities of his role as a SAAB 340 Captain (Year 10) Check Captain (Grade 2). As captain, he was the legal commander of flights, but was also qualified to fly as second-in-charge as a first officer; as a check captain, he conducted routine pilot proficiency assessments, and he received an amount of about $45,000 more than the basic pilot rate under the Pilots EA in recognition of his rank as check captain. Rex referred to its estimate in the percentage breakdowns of Mr Dean's duties, being estimates which were markedly lower than those proffered by him (with Rex's estimates of simulator duties being in range of 50+ but less than 60 per cent).

[53] Rex drew attention to the exigencies which led it to introduce the Policy. As noted earlier, it is unnecessary to traverse the detail of those matters for the purposes of the decision. Relevantly, Rex's submissions noted (concerning the then-proposed introduction of the Policy):

"11. ... Various views were expressed in support or opposition to the policy. Some employees were trenchantly opposed to it, whilst others advised that they would refuse to work with unvaccinated staff members.

12. Mr Dean himself challenged the legality of the policy in a letter dated 24 September 2021. He said the policy infringed the Constitution. He said that it contravened provisions of the Biosecurity Act 2005 (Cth), United Nations instruments, and the Australian Immunisation Handbook. He said that he needed to give informed consent to vaccination or it would otherwise constitute unlawful coercion."

[54] Under the Policy, which came into effect on 8 October 2021, frontline employees were required to provide evidence of their vaccination by 1 November 2021. Frontline employees who had a medical contraindication to vaccination, or who did not want to obtain a vaccination, were required to complete the Declaration Form by 16 October 2021 providing evidence of their medical contraindication and/or reasons for their objection. As to the 32 frontline employees who refused or failed to comply with the Policy, Rex provided the same processes to each of these employees, which involved further engagement with those individuals, and ultimately, a show cause process. By December 2021, 17 employees were dismissed - with the balance electing to obtain a vaccination, resign, or be redeployed.

[55] As to what had unfolded specifically in relation to Mr Dean as one employee among the 17 dismissed employees, Rex's submissions characterised matters in the following way:

"15. With regards to Mr Dean, REX engaged in a lengthy process of discussion and correspondence between 15 October 2021 and 1 December 2021.

(a) On 15 October 2021, Mr Dean submitted his Declaration/Objection Form to confirm that he was not going to obtain a vaccination. He reiterated his view that the policy was coercive, and that he wanted to make an informed decision prior to undergoing a medical procedure.

(b) From there, [Ms Tran] commenced telephone conversations with Mr Dean to discuss his position and to seek his confirmation that he would obtain a vaccination. Such confirmation was not forthcoming, and Ms Tran would provide these updates to REX's Management committee.

(c) On 26 October 2021, REX invited Mr Dean to show cause why he should not be subject to disciplinary action up to and including termination of employment. REX advised that, in line with the policy, he was to be stood down and that he could access his accrued entitlements. REX offered Mr Dean access to its EAP, and allowed Mr Dean to access his paid days in lieu.

(d) On 2 November 2021, Mr Dean wrote to respond to the show cause letter. He said that he was still hesitant, and still gathering information about vaccines. He relayed that he had a close friend of his who he said died after obtaining the COVID-19 vaccine. He said that he was not a front line staff member under the policy, and therefore, the policy did not apply to him or that he should be exempted from it.

(e) On 11 November 2021, Mr Dean and Ms Tran had another conversation. Mr Dean reiterated that he was still hesitant. Ms Tran asked him to put a timeline on when he could get vaccinated, but he would not do so.

(f) On 16 November 2021, REX wrote to Mr Dean and advised that, due to his personal circumstances, it was prepared to extend the time for compliance to 30 November 2021. REX also offered Mr Dean an alternative role as a casual simulator instructor based in Wagga Wagga, which would have accommodated his preference to remain unvaccinated under the policy. REX also encouraged Mr Dean to apply for any other vacancies on its job vacancy board if he wished to apply for an alternative non-front line position.

(g) On 24 November 2021, Mr Dean responded to restate his fear of the vaccine. He reiterated that the policy did not apply to him. He rejected REX's offer of redeployment into the proposed simulator instructor role, and instead proposed an alternative option that involved REX incurring the cost of retraining him for duties that were not required at the time.

(h) On 26 November 2021, REX replied to advise that its position had remained unchanged, and that a meeting would be held to discuss his ongoing employment on 1 December 2021.

(i) On 1 December 2021, REX and Mr Dean met (together with Mr Dean's support person, James Mattner). In that meeting, Mr Dean confirmed his hesitancy again, and confirmed to REX that he was unable to provide a firm commitment as to when he was proposing to obtain a vaccination. REX advised that it was proceeding to dismissal and confirmed this in writing on 2 December 2021."

[56] Rex submitted that it decided to provide five weeks' pay in lieu of notice, despite the refusal constituting what was described as "conventional serious misconduct".

[57] Rex characterised Mr Dean's submissions as in part involving the proposition that the application of the Policy was: "... unreasonable because: (a) he offered alternatives to dismissal which should have been taken up by REX; and/or (b) his personal circumstances were such that the direction became unreasonable". As to that, Rex submitted that the assessment of reasonableness is directed to the Policy and its application to all frontline staff, and not an assessment of Mr Dean's perceptions that the Policy should not have been applied to him; Rex submitted that, taken to its logical conclusion, Mr Dean is asserting that the Policy should have been applied to some frontline staff, but not all staff, and not to him. Rex enumerated thirteen reasons in elaboration of the submission that there was a valid reason for Mr Dean's dismissal, be that because of his incapacity to perform the job as required, or due to his failure to comply with the Policy as a lawful and reasonable direction.

[58] Another tranche of Rex's submissions addressed reasons why Mr Dean contended his dismissal was otherwise harsh, taking into account his personal circumstances and the difficulty he might face in finding alternative employment. Rex's position is that the dismissal was not harsh upon considering all the circumstances leading to the dismissal and having regard to the legislative underpinning of "a fair go all round" for both the employer and the employee, assessed in the context of the authorities. Rex's submissions continued that: "The insubordination to a lawful and reasonable direction will always be serious misconduct that entitles an employer to summarily dismiss an employee" and that the Commission "must start, therefore, at the conclusion that Mr Dean's failure to comply with the policy was grave, and the proportionate response to this was summary dismissal". As to that, Rex submitted that in October to December 2021, Rex sought to accommodate Mr Dean's circumstances by: (a) extending the timeline for him to comply with the Policy to 30 November 2021, to allow him time to grapple with his stated hesitancy; (b) offering the opportunity for redeployment into a non-frontline role; and (c) going to the length of creating a casual simulator instructor role for him, in circumstances where no other employee had a position created for him or her. Upon Mr Dean "unexpectedly" deciding to reject the casual simulator instructor role, providing five weeks' payment in lieu of notice, "notwithstanding the commission of serious misconduct".

[59] Rex submitted that Mr Dean's personal circumstances must be seen against the duty of Rex to afford equal treatment to its 1,400 employees in the implementation of the Policy, in circumstances where differential treatment between employees can bring about an unfair dismissal. Many Rex employees, for their own reasons, opposed the vaccination requirement. Rex sought vaccination compliance from all frontline employees, and it dismissed all those employees who refused to comply. Absent a medical contraindication, no distinctions were drawn by Rex and it would have been unfair for Rex to discriminate between employees and excuse Mr Dean from compliance; and it would be unfair on those employees if the Commission did the same. Moreover, Rex would have been met with objection and dispute upon other employees learning that Mr Dean was to be excused from complying with the Policy.

[60] Mr Dean's alternative proposals were not acceptable and imposed unfair burdens on Rex, i.e.:

- Mr Dean's retaining proposal involved Rex incurring the cost of retraining him for duties it did not require at the time;

- Mr Dean's proposal that he take over simulator duties for other pilots would not have resulted in a full-time workload;

- the cessation of the check captain allowance for those other pilots likely would have followed, or Rex would have been required to continue paying such allowance in circumstances where other relevant pilots were not performing those duties and there was no evidence that those pilots supported such a measure; and

- Mr Dean remained unable to perform the simulator duties in Melbourne, given the then-prevailing COVID-19 measures in place in that State.

[61] Rex submitted that Mr Dean's "last minute request to take leave was not practicable", i.e., the request made in the dismissal meeting on 1 December 2021. Rex required all pilots to be ready, willing and able to conduct flight duties throughout the Christmas period due to the forecasted uptick in demand for flights over the December 2021 to January 2022 period, and due to the expectation that COVID-19 transmission throughout its pilot cohort would place significant pressure on Rex to be able to meet its flight schedules. Rex submitted that an employer may reject an annual leave or long service leave request provided the rejection is reasonable, having regard to the employer's needs at the time.

[62] Rex submitted that Mr Dean "unexpectedly rejected REX's own redeployment proposal into the role [it] had created for him" despite its proposal "accommodating his preference to remain unvaccinated and otherwise meeting the majority of his preferences". Rex's submissions further contended that Mr Dean's "attempts to delay the effect of the policy should be seen as just that. He (like others subject to a show cause process) were delaying the implementation of the policy as it was expected at the time by Mr Dean and others that the courts would vindicate their stance". By way of additional support, Rex submitted:

no employer has a duty to accommodate an employee (be it through delay or role modification) in these circumstances;

Rex needed its employees to comply with the Policy by 1 November 2021 so that it could immediately return to operations, take steps to stem its losses and restore its viability, and ensure that it had all pilots available to it in order to accommodate forecasted demand and COVID-19 illness within its pilot cohort;

Mr Dean's delay attempts should be seen in context and not in hindsight (and in circumstances where Mr Dean as an airline industry worker had preferential access to vaccines from early 2021, he knew by August 2021 that Rex was considering instituting the Policy, he knew by September 2021 that Rex had decided that vaccination was to be mandatory, and Mr Dean had the vast majority of 2021 to come to the decision to be vaccinated).

[63] Rex reiterated its submissions that were to the effect that throughout the consultation phase, Mr Dean made it clear to Rex that he felt the Policy was unlawful (in a letter during the consultation phase) and coercive (in the subsequent Declaration Form). Then, throughout the show cause process, Mr Dean refused to confirm that he was going to obtain a vaccination by a particular date, despite Rex repeatedly asking this of him. By the time of the dismissal meeting on 1 December 2021, Mr Dean remained unvaccinated, and Rex had to treat him as unvaccinated in accordance with the terms of its Policy.

[64] In conclusion, Rex reiterated its submission that a fair go all round was afforded and that it did all that could reasonably be done to accommodate Mr Dean's circumstances and his wish to remain unvaccinated. Further, Mr Dean's personal circumstances did not, on balance, make the dismissal harsh - with reference to a decision of the Commission in which a finding was made that the application of a mandatory vaccination policy to an employee with 17 years' service was nonetheless fair: Edwards v Regional Cream Products [2022] FWC 257. Unlike the circumstances in the referenced case, here Rex maintains that Mr Dean is welcome to reapply for employment now that he has decided to obtain a vaccination, if that is his wish.

[65] Rex submitted that Mr Dean was notified of the reason for the dismissal during the show cause processes that preceded the dismissal. Moreover, the dismissal letter addressed, as to reason, the fact that Mr Dean was unable to perform the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2) because he had not met the requirements of the Policy to be fully vaccinated against COVID-19 - being reasons that related both to capacity (inability to perform) and conduct (failure to comply with the Policy). Rex further submitted that its "exhaustive consultation and show cause process ensured that Mr Dean was notified of REX's reasoning, and that he was given a fulsome [sic] opportunity to respond (section 387(a) and (b)). He had access to a support person, and Mr Mattner was there to provide support in the dismissal meeting of 1 December 2021(section 387(d)). These matters count towards the conclusion that the dismissal was fair."

[66] In his written reply submissions, Mr Dean highlighted various matters where he disagreed or cavilled with, for example, the characterisations or correctness of what had been advanced in some of Rex's written submissions. While I do not summarise all the matters, some of the key matters advanced were as follows.

[67] Mr Dean strongly contested Rex's percentage breakdown of pilot/simulator duties that in the 1 April 2019 to 31 March 2020 pre-COVID-19 he performed approximately 57 per cent of his role as a simulator instructor and 55 per cent from 1 April 2020 to 31 October 2021 (during COVID-19). Upon his own review of his rosters from the period 1 January 2018 to 1 December 2021 and a manual cross-checking in conjunction with his personal diary records, the results summary shows that (for Rex's quoted period): (a) prior to onset of COVID-19 - 73 per cent simulator; and (b) during the pandemic period - 83 per cent simulator. Thus, the more accurate overall figures were 80 per cent simulator and 20 per cent aircraft duties.

[68] As to Rex's submission which read "On 15 October 2021, Mr Dean submitted his Declaration/Objection Form to confirm that he was not going to obtain a vaccination. He reiterated his view that the policy was coercive, and that he wanted to make an informed decision prior to undergoing a medical procedure", that submission was incorrect. That is, in the Declaration Form, Mr Dean did not say he was "not going to obtain a vaccination"; rather, he had said "I am still undecided about whether to get the vaccine or not." Mr Dean submitted also that he did not say the Policy was coercive; what he had said was "I believe I will be in a position to make an informed position without coercion".

[69] As to Rex's submission that "He said that he was not a frontline staff member under the policy, and therefore policy did not apply to him or that he should be exempted from it", Mr Dean submitted this was "miscommunicated", given it was solely in relation to his proposal of redeployment into the simulator. Moreover, the FAQs identified that "Rex will assess the staff member's situation to determine if any other safety measures could be implemented or review other suitable roles (where available) for the staff member to be re-deployed" and identified that "... each situation will be assessed on a case-by-case basis". Further, as to Rex's submission that, in correspondence dated 24 November 2021, "He reiterated that the policy did not apply to him", Mr Dean submitted this was incorrect because he did not say this.

[70] In relation to Rex's submission that "... it went to the length of creating a casual simulator instructor role for Mr Dean", Mr Dean did not believe that this role was so much "created" for him, more so "proposed" to him. Mr Dean submitted it must clearly be noted that it was stated by Mr Tan in his correspondence "... this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement". As to Rex's submission that Mr Dean would have maintained his pilot seniority and received a 25 per cent penalty rate, Mr Dean stressed that this was never mentioned or offered in writing to him. He added that seniority has been one of the major issues through this whole process and an offer involving retention of seniority would have been of major importance to his consideration if it had been communicated to him. Mr Dean submitted there appears to have been a major breakdown in Rex's communications here - in circumstances where he had made several requests to meet with Rex to discuss his situation, but Rex was unwilling to engage with him in this way.

[71] Mr Dean addressed some other miscellaneous matters that had been advanced by Rex in relation to why his proposals were, in effect, impracticable, including:

As to the retaining proposal that would have involved Rex incurring the cost of retraining him for duties it did not require at the time, Mr Dean submitted that type rating is on his licence. Given his extensive experience and competency, the minor addition to perform type rating would likely involve a minimal cost. At the time, Rex had pilots in ground school, meaning these pilots were moving toward type rating training late in 2021 and into early-2022. He also understood that Rex was advertising for simulator instructors around the date of his submissions.

As to concerns expressed by Rex that Mr Dean remained unable to perform simulator duties in Melbourne, given the then-prevailing COVID-19 measures in place in that State, he had been in the Melbourne simulator on three occasions in four years, including for a proficiency check. Mr Dean submitted it would be highly unlikely he would be required there.

As to Rex's submissions that Mr Dean's proposal that he take over simulator duties for other pilots would not have resulted in a full-time workload, Mr Dean submitted that he did not propose to "take over simulator duties", but rather "swap" duties with two Wagga Wagga-based check captains on a temporary basis. Mr Dean had verbal confirmation from these captains that they were happy to support/help-out, as had occurred over the years. As Rex had rejected the offer, there was nothing further to advance by way of evidence.

By reference to clause 66.1.2 of the Pilots EA, Mr Dean disputed Rex's submission that the cessation of the check captain allowance for those other two pilots likely would have followed, or that Rex would have been required to continue paying such allowance in circumstances where pilots were not performing those duties. Mr Dean submitted that check captains are paid an annual allowance as compensation for their check and training duties irrespective of the amount of checking duties they perform. He added it was highly likely that the two captains would have been conducting check duties in the aircraft instead of the simulator and that it is rare that a check captain is rostered for a flight that does not involve check and training duties: therefore, their allowance would still be paid. The swap component of his proposals was, Mr Dean submitted, about redistribution of duties not forgoing duties.

Mr Dean submitted that Rex's submission that his "last minute request to take leave was not practical" did not make sense to him in circumstances where he was trying to work with Rex to remain productive, so the taking of leave was not his first preference. He added: "keeping the Company's productivity first and foremost is how I have always worked" and pointed-out that he thought the dismissal meeting was going to be about coming to an agreement on how he and Rex could implement a mutually beneficial arrangement. On the one hand, Rex was saying there was not enough work in the simulator for him and, on the other hand, Rex was saying that all pilots needed to be ready, willing and able to conduct flight duties throughout Christmas 2021 period due to a forecasted uptick in demand. Mr Dean submitted the simulator demand is continual and consistent, with only minor fluctuations throughout the year, because every pilot is checked every 180 days. This means someone had to perform the simulator duties and, if that had been him, this would have freed other check captains to fly.

In relation to Rex's submissions that Mr Dean's personal circumstances did not, on balance, make the dismissal harsh and that he was welcome to reapply for employment, Mr Dean again noted that there is a "massive detrimental difference" between re-applying and reinstatement in relation to pilot seniority (resetting him from 9 to 298), meaning the loss of the Wagga Wagga basing where he had resided for the last 19 years, with practically no chance of ever regaining that basing.

Mr Dean noted that Rex has not provided a witness statement from Mr Tan, who was its key representative in the dismissal process. Mr Dean also noted that his particular circumstances were relayed on several occasions to the management committee for a decision, but no one from that committee had provided a witness statement.

Mr Dean's closing oral submissions (based on his speaking notes)

[72] Mr Dean's closing oral submissions addressed matters including the following, with the overview drawn from a document he submitted in response to my request that he provide the speaking notes used for closing oral submissions.

[73] The case was not advanced by Mr Dean on the basis of questioning whether Rex's Policy was lawful and reasonable. Rather, Mr Dean submitted that the question of reasonableness was advanced against his own particular circumstances and how Rex handled his situation. Mr Dean encapsulated matters as follows (uppercase in original):

"Why would I risk a career that I love by NOT complying with a REX policy?

I tried very hard to comply, [I] just needed some more time."

[74] Mr Dean submitted that the fact that he had accrued leave gave him confidence that he would have more time to be fully vaccinated in line with the Policy. In that regard, Mr Dean referred to matters including the expectation by Rex's Board that the Policy should be followed and comments made by Mr Sharp that if frontline staff could be redeployed to another area where they were not customer-facing, that would be done to keep those staff and the stated hope that no employee would lose his or her job.

[75] Mr Dean submitted he was "proactive in offering genuine temporary alternatives up to and including the taking of leave" - with the taking of leave being something Mr Dean understood and believed was clearly allowed by the Policy. Mr Dean referred to part of the FAQs numbered 7 in the Policy. The segment to which Mr Dean referred read: "If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date." Mr Dean submitted that if Rex had followed its own policy in such respects "we would not be here today", i.e., in relation to the application for an unfair dismissal remedy. Mr Dean submitted, including by reference to Rex's values as espoused in the Rex Value Statement, that he believed and trusted that Rex "would have supported me on this" in its consideration of his case.

[76] Mr Dean referred to a check captain who is employed full-time by Rex, but is doing simulator-only duties because that employee does not have a current pilot's medical. Mr Dean submitted that Rex accommodated that employee's situation from 5 March 2022 (i.e., in circumstances where he was dismissed on 1 December 2021), which is consistent in the way other pilots had been treated in the past. As to this, Mr Dean rhetorically asked: "Why was this not made available to me?".

[77] Mr Dean referred also to the evidence of what had transpired where serious flight safety breaches or serious policy breaches had occurred and how the pilots involved were managed; relevantly, he submitted matters would be investigated and there would be a meeting to determine what happened and that retraining may occur instead of termination of employment.

[78] Mr Dean submitted that Rex did not genuinely engage with him and/or failed to afford him natural justice and procedural fairness. Mr Dean submitted: "To terminate an extremely loyal employee with over 27 years of service and an exemplary record without even one genuine meeting must be considered unfair. There was no meeting except for the termination meeting" on 1 December 2021. Mr Dean referred to fact that Mr Fisher did not personally contact him even though Mr Fisher held responsibilities for "exercising disciplinary authority over all flight personnel". The Policy identified that "Managers are responsible for ensuring that all new and existing staff and associates in their department, or persons engaged to perform work for their department, are aware of and comply with its policy at all times", but Mr Dean was not contacted by Mr Fisher or any of his managers, in contravention of the Policy in such respects concerning lines of responsibility.

[79] Mr Dean's submissions noted that Mr Fisher, in his evidence, had expressed disappointment that Mr Dean had not accepted Rex's offer of an alternative position as a casual simulator instructor at Wagga Wagga - but Mr Fisher did not know he was not given the terms and conditions that were otherwise outlined in his witness statement in connection with that offer, particularly on the issue of retention of seniority on the seniority list. Mr Dean submitted:

"If this was actually offered to me, I would have taken it.

If a temporary part time simulator position was offered to me, I would have taken it.

If a combination of simulator and accrued leave was offered to me, I would have taken it.

If accrued leave up to Leave Without Pay was offered to me, I would have taken it."

[80] Mr Dean submitted that a simple meeting, or in fact any meeting, between himself and Mr Fisher would have offered him procedural fairness, but, more importantly, between them, they could have "easily cleared up this miscommunication [and] found an equitable solution to both parties". The fact there had been no meeting before the dismissal was confirmed in the evidence of Mr Fisher and that of Ms Tran. Despite Ms Tran's written evidence that she had "periodically" telephoned Mr Dean, Ms Tran had only two telephone conversations during the whole process preceding the dismissal. These telephone calls comprised: (a) a return call that Ms Tran made to him on 21 October 2021, after he had telephoned the HR section; and (b) a short "informal chat" on 11 November 2021 following his response to the show cause letter.

Failure to genuinely listen and procedural fairness

[81] Mr Dean submitted that Rex did not genuinely listen to him or provide him procedural fairness. Mr Dean submitted that his case "is different on a number of levels". As to this, Mr Dean's submissions included the following:

he is not saying he is special or should have been exempt from the Policy;

he continually said to Rex he was not opposed to the COVID-19 vaccine, but had significant hesitancy and anxiety towards the vaccine due to his personal experiences, as confirmed by the evidence of Dr Bjorklund;

he is now fully vaccinated and has been since 10 March 2022.

[82] Mr Dean considered that one option that was not genuinely explored was being redeployed into the simulator on a temporary basis, where he did not need to be vaccinated. Simulator duties made-up the majority of his role and temporary redeployment should have been a simple solution. Regardless of the (disputed) percentage breakdown of simulator duties versus flying duties, Mr Dean noted that it was nonetheless a matter of common ground that the majority of his work was simulator-based. If a middling approximation of a 70/30 per cent split was used, this would mean that only three days in every fortnight needed to be moved from a frontline role to a non-frontline role; and, Mr Dean submitted, this was only for a temporary time until he became vaccinated.

[83] Mr Dean expressed concern about what Ms Tran may have conveyed to Rex's management committee based on their "very limited conversations", and whether his "unique situation" was accurately passed-on to all the decision-makers or whether they were given a very abbreviated version "that lumped me with the anti-vaxxers". Mr Dean noted he had on 24 September 2021 provided voluntary feedback/questions on the then-proposed Policy, pursuant to the invitation extended to employees. The subject-line of the letter was "Request for Advice in Relation to Vaccine Mandates" and was addressed to Neville Howell (acting Chief Operating Officer) and Mr Fisher. As to that letter, Mr Dean explained:

"It was a generic letter that I had received from a friend. It raised some questions and concerns.

The timing of this letter was not long after the death of a close personal friend, which was still very raw to me.

This letter was sent before REX had even put out a draft policy and I don't think it should be used against me, as my intent was purely for feedback.

In REX's submission ... they say I challenged the legality of the policy but at that point in time the policy did not exist.

After the sudden death of a personal friend, following his vaccination, I developed justifiable vaccine hesitancy, which led me to a level of anxiety, through no fault of my own. This has been confirmed by Dr Bjorklund."

[84] Mr Dean noted that Rex did not adduce evidence in the Commission proceedings from Mr Tan, who was Rex's key representative in the dismissal process and a member of Rex's management committee. It was Mr Tan who had sent Mr Dean two emails and who "delivered my termination meeting". Mr Dean noted that his particular circumstances were relayed on several occasions to the management committee for a decision, but no witness statements had been provided by any member of that committee - raising, Mr Dean submitted, Jones v Dunkel questions.

[85] Mr Dean noted that (in the letter confirming the dismissal) Rex suggested that he should re-apply for jobs with it, and Rex's evidence otherwise indicated there was no issue with his employment. As to the invitation to re-apply, Mr Dean drew attention to matters including:

seniority - and that going from 9 to about 300 on the seniority list would mean he would not be able to have a captain's position in Wagga Wagga;

he would lose approximately 55 weeks' sick leave and the potential opportunity for future promotions;

that this is extremely harsh by Rex to Mr Dean and his family after living in Wagga Wagga for more than 18 years.

[86] Mr Dean submitted that he felt that once Rex had formed an early opinion, rather than working with him, it discredited his estimation of frontline duties and failed to communicate the conditions outlined in the casual simulator-only position that was offered to him, including on the seniority issue. Mr Dean further submitted that Rex had actively refused the alternatives he suggested to assure his swift dismissal; he had been employed by Rex for over 10,000 days and if leave had been granted, again, "we wouldn't be here today".

[87] In conclusion, Mr Dean submitted that:

the support he had received from the check and training team, and his pilot colleagues far and wide, had been truly overwhelming;

he has always had Rex's best interests at heart and has always done his absolute best to promote the airline;

he has no doubt that if he and Mr Fisher had had a meeting, they would have negotiated an outcome that was suitable and acceptable to Rex, up to taking leave (including leave without pay) as per the Policy - then, once he was fully vaccinated, he would have continued his loyal employment with Rex; and

Rex did not follow its policies, did not have a meeting with him, did not genuinely listen to him and unfairly dismissed him.

[88] In submitting that the dismissal was harsh, unjust and unreasonable, Mr Dean submitted he should be "reinstated with remuneration".

[89] I turn to a consideration of whether the dismissal was harsh, unjust or unreasonable, taking into account the criteria in s.387 of the Act.

Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

[90] No formal direction, as such, was given by Rex to Mr Dean to be vaccinated against COVID-19. Rather, the effect of the Policy was that a failure by a relevant employee to comply would be treated or considered as non-compliance with a lawful and reasonable direction - with the corollary that disciplinary action may result, including termination of employment. I accept that the Policy's vaccination requirement as it applied to Mr Dean was, for the reasons advanced by Rex, lawful and reasonable in all the circumstances.

[91] As is plain, Mr Dean failed to comply with the requirement of the Policy. I find there was a valid reason for the dismissal related to Mr Dean's capacity and conduct (including the effect of Mr Dean's capacity and conduct on the safety and welfare of other employees) in him failing, as the Policy required, to be vaccinated against COVID-19 by either the initial deadline and/or the extended deadline - in circumstances where Mr Dean's role and responsibilities undoubtedly comprised not only non-frontline simulator duties but also frontline pilot duties. This is so regardless of the contested percentage breakdowns of the respective frontline and non-frontline duties, albeit, on whichever analysis, the majority of Mr Dean's work was simulator-based. Other reasons would also support a finding of a valid reason on capacity grounds, including Mr Dean being unable to fly into various states and airports because he was unvaccinated.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[92] Rex submitted that its exhaustive consultation and show cause process ensured that Mr Dean was notified of its reasoning, and that he was given a full opportunity to respond. I accept that there was comprehensive consultation in the lead-up to the implementation of the Policy with employees, various unions, and other interested parties such as the WHS committee and the Pilots' Committee. What then next occurred that was specific in relation to Mr Dean included advice in the show cause letter that read:

"As outlined in the Policy, this means that from 1 November 2021:

- you are not able to attend for work because you are not ready willing and able to meet all the requirements of your position;

- you will not be paid any pay until you are ready, willing and able to attend for work (which means being vaccinated and providing evidence of this);

Bradley John Dean Regional Express Holdings Ltd [2022] FWC 1448 (8 July 2022)

At a glance

Court

Decision date

Source

Judgment (374 paragraphs)

Bradley John Dean Regional Express Holdings Ltd [2022] FWC 1448 (8 July 2022)

Legislation Cited (2)

Cases Cited (1)