Fair Work Commission|2022-04-07

Christine Inwood v Baxter & Co. Pty. Ltd. [2022] FWC 792 (7 April 2022)

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - refusal to be vaccinated against COVID-19 - public health orders - valid reason found - no reasonable opportunity to respond - dismissal was unfair - no loss of income - no remedy ordered.

[1] The Applicant, Ms Christine Inwood, is not vaccinated against the coronavirus. Ms Inwood worked for Baxter & Co Pty Ltd as the manager of the 'Baxter Boots & Shoes' store in Tamworth in New South Wales. In August and September 2021 Tamworth, like much of New South Wales, went into lockdown because of the spread of the Delta strain of the coronavirus. While Baxter & Co was preparing to come out of lockdown it made a polite inquiry to Ms Inwood of her vaccination status, because the public health orders would only allow Ms Inwood to return if she was vaccinated. Ms Inwood indicated in clear terms that she was not prepared to be vaccinated and was dismissed by return email.

[2] On 19 October 2021 Ms Inwood made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Baxter & Co Pty Ltd (Baxter & Co).

[3] Prior to her dismissal Ms Inwood and Baxter & Co exchanged messages via email and SMS. In the course of this exchange Ms Inwood sent a letter that she had downloaded from a website. The letter was offensive in tone, incorrect, made ridiculous demands of the employer, and imposed conditions upon any agreement to be vaccinated that bore no semblance to the reality of the employment situation.

[4] A number of factors led to Ms Inwood's dismissal: the letter of 3 October 2021, the fact that public health orders prevented Ms Inwood from entering Baxter & Co's premises unless she was vaccinated, and the fact that Ms Inwood had unambiguously declared that she would not be vaccinated.

[5] For the reasons that follow I find that the dismissal of Ms Inwood was procedurally unfair and that she was unfairly dismissed. In the circumstances however, I am not prepared to make any orders for reinstatement or compensation.

[6] By September 2021 Ms Inwood believed that the Public Health Orders were illegal and that proceedings in the Supreme Court of NSW would establish their unlawfulness. Ms Inwood did not try to attend work in contravention of any public health order, did not advocate for any kind of civic disobedience, but made it clear that whilst ever Baxter & Co required her to be vaccinated to enter the store, she was not prepared to do so.

[7] Ms Inwood did her own research about the approved vaccines, the risks of vaccination and about what she thought were her legal rights. In her research, Ms Inwood came across a website of an organisation that opposed vaccination and that provided free, downloadable letters for likeminded workers to use in their employment.

[8] As community vaccination levels rose, which in turn allowed for restrictions to be progressively eased, Baxter & Co began planning to re-open its shop. The first stage of the easing of restrictions allowed non-essential shops, such as shoe shops, to trade. One key initial trading restriction, however, was that only vaccinated people could enter the shop - staff and customers alike.

[9] Ms Inwood had been opposed to covid-19 vaccination from some time prior to September 2021. Her vaccination status, as opposed to her views on vaccination, became more important as lockdown restrictions began to ease. Her availability to work, or more precisely Baxter & Co's authority to allow Ms Inwood to enter its premises, was legally tied to Mis Inwood's vaccination status.

[10] Unfortunately, as the time for re-opening drew close, Ms Inwood's communication with her employer became more antagonistic.

[11] Eventually Ms Inwood sent to her employer a letter based on a template she received from the Internet asking a series of questions about Covid-19 vaccines such as "can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg code?" and insisting upon certain conditions before she would agree to be vaccinated such as "[Baxter & Co] confirm that I will suffer no harm" and that the employer document "be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself."

[12] Ms Inwood's letter was the final straw for Baxter & Co. By reply email Baxter & Co referred to Ms Inwood's letter as a "load of rubbish" and dismissed her from her employment.

[13] There is very little disagreement between the parties as to what occurred. All of the relevant communication was either by SMS or email. The disagreement between the parties arises in relation to the consequences of Ms Inwood's decision not to be vaccinated and Baxter & Co's decision to dismiss her. There is no disagreement that under various Public Health Orders Ms Inwood could not attend work for a long period of time. Neither Ms Inwood nor Baxter & Co had any choice about that, noting of course that Ms Inwood very much had the choice to be vaccinated or not.

[14] On 2 September 2021, when Tamworth and much of NSW was in lockdown, Mr Marshall Baxter made the following enquiry of Ms Inwood via SMS:

"Hi Chris just a short note to say hi and see how you and the staff are going with covid vaccinations for when we come out of lockdown.

[15] Ms Inwood replied in the same day by SMS as follows:

"Hi Marshall. I am waiting on the outcome of the Supreme Court hearing tomorrow regarding mandatory vaccination. I personally am still sitting on the fence just watching and waiting for more long term affects and research. As the vaccine is still experimental, are you aware should people suffer injuries or death following vaccination, your life or disability cover will not be paid due to the experiment. I am sending you a letter prepared apparently by a firm of Solicitors that is circulating in public service and private workplaces. I believe from what I am told, employees may sue their employer if the letter is submitted and people are forced to be vaccinated or lose their jobs. Perhaps more research needs to be done to protect yourself. Also check the Bill before Parliament by Craig Kelly "no mandatory vaccination". At this stage, I feel it is premature and risky to mandate staff vaccination. Of course, it is up to you. I will send a copy of this to Harry. I hope you and all the family are keeping well.

[16] As foreshadowed in her SMS, Ms Inwood sent a letter to Baxter & Co on 2 September 2021 in the following terms:

'I write with regard to the matter of potential covid vaccine and my desire to be fully informed and appraised of ALL facts before going ahead.

I'd be most grateful if you could please provide the following information, in accordance with statutory legal requirements:

1. Can you please advise me of the approved legal status of any vaccine and if it is experimental?

2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?

3. Can you please advise of the full list of contents of the vaccine I am to receive and if any are toxic to the body?

4. Can you please fully advise of all the adverse reactions associated with this vaccine since it's introduction?

5. Can you please confirm that the vaccine you are advocating is NOT 'experimental mRNA gene altering therapy'?

6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg Code?

7. Can you please advise me of the likely risk of fatality, should I be unfortunate to contract Covid 19 and the likelihood of recovery?

Once I have received the above information in full and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions - namely that:

2. Following acceptance of this, the offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorized personnel regarding these procedures.

3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?

I would also advise that my inalienable rights are reserved.'"

[17] It is not clear to me whether Ms Inwood was expecting a reply to this letter. The SMS sent prior to the letter refers to "a letter prepared apparently by a firm of Solicitors that is circulating in public service and private workplaces", and Ms Inwood also suggested to Mr Baxter that "perhaps more research needs to be done to protect yourself". The letter itself is obviously a template and Ms Inwood did not seem to have changed any of the text, leaving in references such as "this if your employer insists on a jab" and "Letter to Employer". Baxter & Co did not reply to the letter and Ms Inwood did not press for a reply. The most likely interpretation is that Ms Inwood sent this letter to Baxter & Co 'for your information' rather than expecting a response.

[18] On 6 September 2021 Marshall Baxter replied via SMS as follows:

"Hi Chris thanks for your reply. My family and I are well. We have taken the advise of expert doctors and now are fully vaccinated. This makes us secure in the knowledge that we will not end up in hospital if we contract covid and the odds of us spreading covid is far less, not to mention helping Nsw reach the target so we can resume business and get out of lockdown. I took it from your in message that you are somewhat against vaccination for covid. Could you please advise if you are willing to be vaccinated before the end of lockdown as I have a duty of care to you, the other staff who have been vaccinated and to our customers. Customers will not be allowed in the shop if they have not been vaccinated as we have a duty of care. I would appreciate it if you would call me if you wish to discuss this important matter. Regards Marshall."

[19] The next day Ms Inwood sent an email to Marshall Baxter that included the following:

"With respect, I am not against vaccination. I am more concerned about personal choice.

I am presently seeking advice concerning the vaccination, and whether or not it is a medically appropriate treatment for me.

Please be advised that currently there are multiple cases before the High Court and the Supreme Court of NSW, and in which the Court is being asked to consider whether the current Public Health Orders are valid, or whether they are invalid; and because of inconsistencies with the Australian Immunisation Register Act 2015 (Cth), and the Biosecurity Act 2015 (Cth).

Orders are being made in the proceedings for the purposes of bringing them on for hearing.

I request that you permit the Courts to determine the issues as to whether or not it is lawful for me to be subjected to a mandatory vaccination, before you seek to impose this outcome on me.

I look forward to revising this issue with you when the outcome of the Court process is known.

As matters stand, it is illegal to seek to impose a medical outcome upon me, without my consent.

Accordingly, and for present purposes, please respect my decision whilst we await an answer from the Court."

[20] Two days later Ms Inwood sent the following request to Marshall Baxter by SMS:

"Good morning Marshall and Harry. It seems we are coming out of lockdown. Could you please let me know what hours we will be trading? As you have indicate, you are enforcing mandatory vaccination for staff and shoppers, could you please email that direction in writing on Company letterhead signed by a current Company Director. Kind regards, Chris."

[21] Ms Inwood's message seems to have prompted Baxter & Co to then remove Ms Inwood's security administrator rights on Baxter & Co's Facebook page.

[22] Marshall Baxter then sent an email to Ms Inwood in the following terms:

I am not making vaccination mandatory for staff and please note I have never stated that and neither has the NSW Govt.

The NSW Govt has made health orders today, stating people who enter businesses ie retail, gyms, hairdressers pubs etc have to be vaccinated to enjoy these freedoms.

They have also stated employees in these businesses also need to be vaccinated to prevent the spread and contraction of covid.

Until the Govt states the contrary which is most unlikely, unfortunately we can not take the risk of our staff and customers who have not been vaccinated entering the business as we have a duty of care under said orders.

So due to this I can not allow you to enter the business premises until you have been vaccinated.

It is a matter entirely for yourself whether you are vaccinated or not vaccinated and it is not a decision I can make or mandate nor the Govt.

Under the new health orders people who have not been vaccinated are only allowed to attend critical retail premises such as a supermarket.

Due to the health orders, if you do not believe vaccination is for you, due to whatever reasons, I see under these new health orders, the only option available is for you to resign from Baxter and Co."

[23] Mr Baxter's actions drew a provocative response from Ms Inwood. Ms Inwood sent an email in reply in the following terms:

I note I have been deleted as an Administrator of the Baxter Boots & Shoes Tamworth Facebook page which leads me to believe I have been fired.

[24] The final email that day, 9 September 2021, was from Harry Baxter to Ms Inwood in the following terms:

However Due to the health orders regarding people who have not been vaccinated and Marshall's previous emails. We are not in a position to give you any employment hours in the shop.

However if the government changes its health orders policy we will be in contact.

In regards to the Facebook. We have removed you as an administrator, as in these circumstances it makes business sense to administer it ourselves.

Regarding Debbie resigning please advise if you had a conversation with her after you received the letter this afternoon regarding health orders and vaccination."

[25] True to its word Baxter & Co then waited almost one month before contacting Ms Inwood again. On 3 October 2021 Harry Baxter sent an email about Ms Inwood's vaccination status:

With the new public Health orders coming out stating employees have to have at least 1 vaccination and at least a booking for a second one.

Can you please advise whether you will be vaccinated by October 11?"

[26] Baxter & Co's request, that Ms Inwood advise whether she will be vaccinated by 11 October, was a very reasonable request. Three weeks beforehand Ms Inwood had indicated in fairly strong terms that she was opposed to vaccination. If Ms Inwood had not received at least one dose by 11 October 2021 then Baxter & Co could not allow her to enter its premises. Unfortunately Ms Inwood chose to send the following email in response:

I write in response to your email today with regard to the matter of potential covid vaccine and my desire to be fully-informed and appraised of ALL facts before going ahead.