Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District

Industrial Relations Commission (NSW)|2022-08-01

decision

Katherine Cromie was employed as an Enrolled Nurse at the Shoalhaven District Memorial Hospital ("Hospital"), which falls under the auspices of the Illawarra Shoalhaven Local Health District ("ISLHD"). On 7 December 2021 Ms Cromie's employment was terminated on the basis that she had not demonstrated that she had been vaccinated against COVID-19 or had an exemption due to a medical contraindication. She commenced proceedings pursuant to s 84 of the Industrial Relations Act 1996, alleging that her dismissal was harsh, unreasonable or unjust. She seeks reinstatement to her position.
The hearing of the matter took place on 1 August 2022. Ms Cromie was represented by Stephen Lymbery, who appeared as an unpaid agent. Ms Cromie relied on: 1. a statement she had signed on 3 June 2022; 2. a document signed by her on 3 June 2022 titled "My Brief Summary"; 3. a bundle of documents described as a "Notice and Knowledge"; and 4. a written outline of submissions.
The Health Secretary was represented by Catherine Wilkinson, a partner of Sparke Helmore Lawyers. The Health Secretary relied on: 1. an affidavit of Melissa Jane Daly (Bell), the Nurse Unit Manager, Medical Ward South at the Hospital, affirmed on 29 June 2022; 2. an affidavit of Vicki Jane Weston, the Director Workforce Relations & Management of the ISLHD, affirmed on 1 July 2022; and 3. a written outline of submissions.

Factual background

There is little controversy as to the circumstances of Ms Cromie's employment at the Hospital and the events that led to the termination of that employment.

Ms Cromie's employment

Ms Cromie commenced employment as an Enrolled Nurse in the Medical Ward South of the Hospital on 4 April 2016. She reported to Ms Daly. In her affidavit, Ms Daly deposed: "9. The Medical Ward South is a 17-bed ward which provides general medical and nursing related health care services to patients. These patients are acutely unwell, with some individual specialling [sic] (close individual monitoring). Occupancy of the ward is consistently around 100%, with a current rate of 98.91% and a current length of stay rate averaging 7.61 days. Most of the patients are aged over 65. 10. Medical South Ward is the furthest unit from the main entrance of Shoalhaven Hospital. To access the unit, staff and patients enter Shoalhaven Hospital through the main doors and then need to walk through Medical Ward North. ([Currently] the Medical Surgical Ward where a mixture of surgical and general medical patients are cared for). … 12. As an Enrolled Nurse in Medical Ward South, Ms Cromie worked in a collaborative nursing team. Ms Cromie's role is a clinical position with the following duties and responsibilities: a. Patient personal care such as showering, toileting, dental hygiene and pressure area care and wound care; b. Medication administration; c. Completion of patient assessments, such as Falls Risk Assessments, Waterlow Assessments, Cognitive Function Assessments; d. Mobility assistance including use of walkers, aids and support; e. Nutritional support and assistance with patient feeding; f. Patient observations; and g. Keeping and maintaining relevant medical records. 13. It was necessary for Ms Cromie to frequently interact with other clinicians in her role in order to effectively deliver health services to our patients. This includes: a. Doctors; b. Nurses; and c. Other allied health staff such as physiotherapists."

COVID-related requirements impacting the employment

On 26 August 2021, pursuant to s 7 of the Public Health Act 2020, the Honourable Brad Hazzard MP, the Minister for Health and Medical Research, made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 ("PHO 1"). It relevantly provided: "2 Definitions … COVID-19 vaccine means a vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19. … 4 Directions concerning vaccination of health care workers Directions of Minister for health care workers to be vaccinated (1) The Minister directs that a health care worker must not do work as a health care worker unless- (a) if the work is done on or after 30 September but before 30 November 2021- the worker has received at least 1 dose of a COVID-19 vaccine, or (b) if the work is done on or after 30 November 2021- the worker has received at least 2 doses of a COVID-19 vaccine. (2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker. … 5 Direction of Minister for responsible persons for health care workers The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause."
On 22 October 2021, PHO 1 was repealed and replaced by Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 ("PHO 2"). While expressed in slightly different terms, PHO 2 was in substance and effect the same as PHO 1. The definition of a COVID-19 vaccine was amended to read: "approved COVID-19 vaccine means a vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use in Australia as a vaccine against COVID-19."
There was no controversy that Ms Cromie was a "health care worker" within the meaning of PHO 1 and PHO 2.
On 12 November 2021, the Health Secretary made a determination pursuant to s 116A(1) of the Health Services Act 1997 ("Determination"). The Determination fixed, as a condition of employment of NSW Health Service employees, that to be employed or remain employed they must meet prescribed vaccination requirements, which were to the same effect as those in PHO 2.

Events leading to dismissal

On the evidence before me, the following facts seem uncontroverted: 1. The requirements of PHO 1 were the subject of numerous discussions between Ms Cromie and Ms Daly from approximately mid-August 2021 up until 30 September 2021. 2. Ms Daly offered Ms Cromie the opportunity to speak to Dr William Pratt, Infectious Diseases Specialist at ISLHD, to discuss any concerns or questions she may have had regarding COVID-19 vaccines. Ms Cromie declined that offer. 3. On 25 August 2021, Margot Mains, ISLHD's Chief Executive, sent a "COVID-19 Staff Update" to staff of the ISLHD referring to "the new Public Health Orders making it mandatory for healthcare and aged care staff to be vaccinated". 4. On 26 August 2021, Phil Minns, the Deputy Secretary of People, Culture and Governance in NSW Health, wrote to NSW Health staff outlining the requirements on PHO 1. 5. Those requirements were again outlined in a further "COVID-19 Staff Update" issued by Ms Mains to ISLHD staff on 27 August 2021. 6. On 15 September 2021, Craig Hamer, the General Manager of the Hospital, wrote to Ms Cromie setting out the requirements of PHO 1; providing information as to how Ms Cromie could meet those requirements; and advising that Ms Cromie would be unable to continue to work if she had not met those requirements by 30 September 2021. 7. On 16 September 2021, Ms Cromie wrote to Mr Hamer seeking information, including clarification as to the necessity of the vaccination requirement and confirmation that vaccination would have no harmful impact on her. 8. On 23 September 2021, Gerrard Golding, the Executive Director Strategic Improvement Programs for the ISLHD, wrote to Ms Cromie. The effect of the letter was largely the same as that of Mr Hamer dated 15 September 2021. 9. On 29 September 2021, Ms Weston wrote to Ms Cromie is response to her letter to Mr Hamer of 16 September 2021. 10. On 30 September 2021, Mr Golding wrote to Ms Cromie to advise that as she had not met the vaccination requirements, she was unable to work for the NSW Health Service. Ms Cromie was informed that she was "now on unpaid leave". 11. On 5 October 2021, Ms Cromie sent another letter to Mr Hamer requesting information about vaccines and vaccination requirements. 12. In an email of 15 October 2021, Ms Weston responded to Ms Cromie's letter of 5 October 2021. In her email, Ms Weston stated: "A Public Health Order is a statutory instrument issued under the Public Health Act 2010 and NSW Health is legally required to comply with the order." 1. On 15 October 2021, Ms Mains wrote to Ms Cromie, inviting her to make submissions as to why her employment should not be terminated due to her failure to meet the requirements of PHO 1. 2. On 21 October 2021, Ms Cromie wrote to Ms Daly asking for "a copy of your COVID-19 vaccination risk assessment for Medical Ward South". 3. In an email of 22 October 2022, Ms Weston replied to Ms Cromie's letter of the previous day. She reiterated the requirements of PHO 1. She encouraged Ms Cromie to consider her obligations under PHO 1 to allow her, subject to being vaccinated, to return to work. 4. On 29 October 2021, the ISLHD received separate responses to Ms Mains' letter of 15 October 2021, from Ms Cromie personally and from the "Red Union" on behalf of Ms Cromie. 5. On 19 November 2021, Caroline Langston, the Acting Chief Executive of the ISLHD, wrote to Ms Cromie to inform her that PHO 2 had been made, which replaced PHO 1, and that the Determination had also been made. The letter provided Ms Cromie with a "final opportunity" to provide evidence of vaccination or an exception due to a medical contraindication, or to provide any further response she wished to make regarding the proposed termination of her employment. 6. Ms Cromie responded to Ms Langston's letter on 29 November 2021. 7. On 7 December 2021, Ms Cromie's employment was terminated due to her failure to meet the requirements of PHO 2 and the Determination.
For ease of reference, I will from now on refer to the requirements imposed by PHO 1, PHO 2 and the Determination as the "Vaccination Requirements".

Principles to apply

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

Grounds on which Ms Cromie relies

In very large part, the evidence and submissions on which Ms Cromie relies are directed towards challenging the legality, validity or enforceability of PHO 1 and PHO 2, and by extension the Determination which flowed from them. Indeed, Ms Cromie sought to challenge the validity of the legislation pursuant to which the public health orders and the Determination were made. The information contained in Ms Cromie's "Notice and Knowledge" bundle of documents was said by Mr Lymbery to demonstrate that "all legislation in this country is unconstitutional".
It is apparent from the material prepared by Mr Lymbery on Ms Cromie's behalf that he has devoted a significant amount of time in the presentation of her case. I acknowledge the care which he has taken to do so. However, as Mr Lymbery himself acknowledged at several times during the hearing, the Commission is not the place in which these matters can be determined. As Commissioner Murphy observed in Griffin and others v Health Secretary; Thorncraft and others v Secretary of the Department of Education [2022] NSWIRComm 1027 ("Griffin"): "37. I note that, whilst a considerable bulk of the submissions by some parties went to the validity and/or legality and/or enforceability of the Public Health Orders and Determinations set out at [10]-[21] above, this Commission is not the forum in which to agitate such matters. These instruments will be accepted in this jurisdiction as valid and enforceable pieces of delegated legislation unless and until found to be otherwise in another place."
I observe in any event that the arguments on which Ms Cromie relies to challenge the validity or enforceability of the public health orders have been disposed of by the Supreme Court: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, upheld in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.
In Larter v Hazzard (No 2) [2021] NSWSC 1451 Adamson J observed: "82. The ambit of the Order, in its original form, was, in my view, reasonable, for the reasons given by Dr Chant, which included the risks posed by the virus, its transmissibility, the relative inefficacy of the vaccine to protect vulnerable persons and the integrated nature of NSW Health. A person who could work remotely could well be required to attend a site where health care providers were working or could be required to provide a face-to-face health service. That person, if unvaccinated, could transmit the virus to others within the public health system, including patients. While the risk might be regarded as relatively remote, if the person is generally not providing in-person patient health care, a reasonable assessment of the risk takes into account not only the probability that the harm would occur if the measure was not taken (mandating vaccination) but also the likely seriousness of that harm (in this case, death of vulnerable individuals and operational disruption to public health services caused by the need to isolate staff and patients and close facilities for a not insignificant period). … 89. The evidence which Dr Chant gave of her reasons and her thought-processes provided a comprehensive explanation of the rationale for the orders. When the decision sought to be impugned is 'a matter of opinion or policy or taste it may be very difficult to show' legal unreasonableness because, in such cases, the decision-maker (in this case, the Minister) 'will be left with a very wide discretion which cannot be effectively reviewed by the courts': Buck v Bavone (1976) 135 CLR 110 at 119 (Gibbs J); [1976] HCA 24. Dr Chant's articulation of the rationale for the orders in her affidavit evidence and her responses to Mr Prince's cross-examination was a model of reasonableness. She was able to explain, on a scientific basis, why the Order, the Amended Order and Order 2 had been made, why they were made when they were made, and why the lines had been drawn where they had. Although Dr Chant was an adviser, and not the repository of the power to make orders conferred by Parliament, it was open to the Minister to accept her advice and make the orders she recommended that he make, as in fact occurred. 90. I am satisfied on the basis of Dr Chant's evidence, that it was reasonably open for the Minister to make the Order in both its original and amended form, subject to the issue of timing, which will be addressed below."
In relation to the validity of the Determination, in Griffin Commissioner Murphy observed: "49. Further, the Health Determination (at [14]) has made it a condition of employment that all employees of local health districts, such as the applicants were prior to their dismissals, be double vaccinated against COVID-19 or hold a medical contraindication certificate. It is not open to the Commission, in this proceeding, to go behind the Health Determination and look at issues such as the medical and/or scientific basis or rationale for the making of the Health Determination by the Health Secretary. The Commission accepts that the Health Determination has been validly made and is now part of the industrial landscape for workers in the public health sector. …"
With respect, the Commissioner's statement that "it is not open to the Commission…to go behind the Health Determination" must be approached with caution. If a case is presented that a dismissal was unfair on the basis that it was the consequence of a determination made pursuant to s 116A of the Health Services Act which is alleged not to be lawful and reasonable, for example, the Commission can and should consider that case. Section 116A confers no particular protection against scrutiny of the Secretary's decisions.
Having said that, s 116A(1) does confer on the Health Secretary the power to "fix the salary, wages and conditions of employment of staff employed" in the NSW Health Service. The Commission ought not too readily interfere with the exercise by the Health Secretary of that power: Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW (In Orders Dispute) [2022] NSWIRComm 1016 at [29]-[31], [42]; Application for NSW Ambulance Safe Paramedic Crewing Award [2022] NSWIRComm 1037 at [107]-[114].
I acknowledge that in Griffin, Commissioner Murphy was dealing only with threshold issues that had arisen in the proceedings before him, namely the availability or otherwise of remedies pursuant to s 89 of the Industrial Relations Act for those applicants who could establish that their dismissals were harsh, unreasonable or unjust. He did not consider the fairness of the dismissals. His reference to "in this proceeding" may therefore be significant.
In the present matter, I am not persuaded that Ms Cromie has made out a sufficient basis on which I could find, contrary to Commissioner Murphy's finding, that the Determination was not validly made. She has similarly not satisfied me that there are sufficient grounds on which I would interfere with the Health Secretary's decision to make the Determination.
Insofar as they are directed more particularly to the circumstances of her dismissal, Ms Cromie's submissions contend that the Health Secretary should have, but did not, conduct risk assessments and consultation under the Work Health and Safety Act 2011 in respect of the Vaccination Requirements.
In Munn and Others v Health Secretary [2022] NSWIRComm 1044 Commissioner O'Sullivan considered the following question (at [2(1)]): "In complying with the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 2 Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 3 Order 2021 and/or Health Secretary's Determination 33 of 2021 was the respondent(s) required to consult and/or undertake risk assessments in accordance with the provisions of the Work, Health and Safety Act 2011 (NSW)?"
The Commissioner answered the question in the negative. No arguments were advanced as to why I ought not follow that authority.
Further, the Health Secretary submitted: "4.10 In respect of the Determination, the Respondent also notes the power of the Secretary to fix conditions of employment under s 116A of the HS Act is not qualified nor does it prescribe consultation as a precursor (any more than this Commission might be required to consult with individual employees before it sets conditions of employment). There is evidence the Respondent consulted with unions about the introduction and implementation of the Vaccination Requirements. In the absence of any evidence to the contrary, the Commission would make no adverse finding in respect of the level of consultation."
The evidence supports these submissions. PHO 1 and PHO 2 imposed obligations on the Health Secretary which she was bound to implement. The application and enforceability of the public health orders was not subject to or conditional on consultation with the affected employees, either collectively or individually. Even so, there was consultation with unions at a collective level prior to the making of the public health orders, and no suggestion of any opposition. Further, it is clear that staff at the ISLHD made every effort to ensure that Ms Cromie was aware of the Vaccination Requirements and of the consequences of non-compliance.
For these reasons, I do not accept that the dismissal was unfair due to a failure by the Health Secretary to consult with Ms Cromie, whether pursuant to the Work Health and Safety Act or otherwise.
For similar reasons, I do not accept the argument advanced by Ms Cromie that the Health Secretary could have instituted alternative measures, instead of vaccination, such as rapid antigen testing. Put simply, neither PHO 1 nor PHO 2 permitted such alternatives. They were clear and mandatory in their terms. Any attempt by the Health Secretary to permit an unvaccinated worker to remain in employment, regardless of any other measures taken, would have been in breach (in the absence of an exemption due to a medical contraindication).
During the hearing, Mr Lymbery made passing reference to the requirement in PHO 1, PHO 2 and the Determination that the relevant vaccine be "approved". He appeared to suggest that there may be some question as to whether the vaccines against COVID-19 available to Ms Cromie were so approved, but did not elaborate on the submission. However, I note that in this regard in Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 ("Peck") Commissioner Muir observed: "41. Each of the PHO2 and Determination referred to a COVID-19 vaccination which is approved for use in Australia. It is true that each of the COVID-19 vaccinations approved by the TGA is provisionally approved. Nevertheless, they are approved for use in Australia. 42. The absence of the words 'in Australia' from the definition of COVID-19 vaccine in PHO1 probably makes no difference to this conclusion, but the dismissal occurred when PHO2 was in place. 43. Accordingly, I consider that the respondent's reason for termination has a basis in fact." (Emphasis in original)
I respectfully adopt the same position as Commissioner Muir.

Determination

The onus is on Ms Cromie to establish that her dismissal was harsh, unreasonable or unjust. I find that she has failed to discharge that onus.
For the reasons set out above, I find that the dismissal was not unjust. I consider that the Vaccination Requirements comprised a lawful and reasonable direction. I once again have regard to observations of Commissioner Muir in Peck, which are apposite to the current matter: "44. Mr Peck submitted that a choice to take a vaccine, or be dismissed, was an unfair choice. However, that this formulation fails to take into account the obligations on the respondent pursuant to PHO1 and PHO2 not to allow an unvaccinated health care worker to do health care work. A health care worker who cannot do health care work is unable to perform an inherent requirement of their job. 45. This additional factor would of itself be sufficient to prevent the choice being unfair, as the impact of the choice on Mr Peck needs to be balanced against the impact of the parallel obligation on the respondent created by PHO1 and PHO2. 46. However, even without this counter balancing obligation on the respondent it would not be an unfair choice. It may be a choice that Mr Peck does not like, and it may be one with serious consequences, but it was one imposed in particular circumstances. Those circumstances included unprecedented restrictions on citizens, businesses and public services, and most importantly that the choice was imposed on health care workers. 47. It is frankly impossible to conceive of a profession on whom such a choice could more obviously be imposed. In Mr Peck's case he was a registered nurse working in a public hospital. 48. To the extent I need to consider whether the Determination is a lawful and reasonable direction it follows from the foregoing that I do consider it both lawful and reasonable."
I also find that the dismissal was not unreasonable. As already observed, the ISLHD took care to ensure that Ms Cromie was aware of the Vaccination Requirements and of the potential consequences for non-compliance with them. She was encouraged to meet the Vaccination Requirements in order to secure her ongoing employment. She was given the opportunity to "show cause" why her employment ought not be terminated when she failed to meet the requirements of PHO 1, and a further opportunity when PHO 2 and the Determination were made.
In her document titled "My Brief Summary", Ms Cromie stated: "I was not given the information I've requested, therefore I was unable to give informed consent to a vaccine that [I] was required to take."
The information sought by Ms Cromie included clarification as to the necessity of the Vaccination Requirements and confirmation that vaccination would have no harmful impact on her. In context, the premise of her statement at [35] above appears to be that in the absence of the Secretary allaying her concerns, on an individual and subjective level, any consequential dismissal is unfair. I do not accept that proposition. Amongst other things, it eschews any responsibility for Ms Cromie, herself an enrolled nurse, conducting her own enquiries and research into COVID-19 vaccination.
More pertinently, the statement is disingenuous. It is clear from Ms Cromie's evidence and submissions that she was and is adamantly opposed to being vaccinated against COVID-19. There is nothing that the Secretary could conceivably have done that would have swayed Ms Cromie in this regard.
I acknowledge that Ms Cromie was confronted with a stark and hard choice. Nevertheless, it was a choice.
On the question of harshness, Ms Cromie stated in her "Brief Summary": "Since being stood down in September 2021 and then terminated in December 2021, my life changed. What was supposed to be an important time in my life achieving goals I've now had to put on hold for the unforeseen future. For example I was unable to buy a house that I worked hard to save for because I no longer had a secure income. I struggled to find a secure job for several months because people are discriminating against the unvaccinated. My mental health declined. It was difficult to see the positive side of life on a daily basis. I still do today. I've also lost a big portion of my social circle at the Shoalhaven Hospital."
I have considered these matters and "weighed them in the balance" against the reasons for and circumstances of Ms Cromie's dismissal: see Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [156]. I do not consider that, in the circumstances, Ms Cromie's termination "has been shown to be too harsh a consequence": see Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [29].

Order

Having found that Ms Cromie's dismissal was neither harsh, unreasonable or unjust, the only appropriate order is that the application be dismissed. I so order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2022

Work, Health and Safety Act 2011(NSW)

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