Danger v Commissioner of Police

Respondent's Notice of Motion

1. On 22 November 2021, the respondent filed a Notice of Motion in the Commission which sought the following: 1. An order dismissing or otherwise setting aside the Application for Relief in relation to Unfair Dismissal filed by the applicant on 8 November 2021 (Unfair Dismissal Application); and 2. Any further or other orders that the Commission sees fit. The grounds and reasons in support of the respondent's motion were stated as follows: 1. The Applicant has brought an Unfair Dismissal Application against the Respondent pursuant to Part 6 Chapter 2 of the Industrial Relations Act 1996 (IR Act). 2. Pursuant to s. 84(1) of the IR Act, in order for the Commission to be seized of jurisdiction to hear the Unfair Dismissal Application, there must have been a dismissal by the Respondent of the Applicant. 3. The Applicant voluntarily resigned from her employment with the Respondent effective 15 November 2021, by giving notice in writing on 18 October 2021. 4. There was no dismissal of the Applicant by the Respondent. The Respondent was not the real and effective initiator of the termination of the Applicant's employment 5. Accordingly, the Applicant is not entitled to bring the Unfair Dismissal Application and the Commission does not have jurisdiction to hear the Unfair Dismissal Application. 6. The Unfair Dismissal Application must be dismissed for want of jurisdiction.
2. The matter came before me on 24 November 2021. On that occasion, pursuant to Practice Note 17A of the Commission's practice notes, I decided to hear and determine the respondent's motion as a threshold issue prior to conciliation taking place. Directions were made for the filing and serving of evidence and submissions with respect to the orders sought by the respondent in its Notice of Motion.
3. It later emerged that the applicant had received her first dose of a Covid-19 vaccination on 19 November 2021 and her second dose on 10 December 2021.
4. The matter came before me for hearing on 31 January and 21 February 2022. Much of what was put by both parties during the hearing on these two days went beyond the threshold issue raised in the respondent's motion and canvassed the merits of the applicant's unfair dismissal application.
5. During the hearing on 21 February 2022, the following exchange occurred with Mr Seck, counsel for the respondent: COMMISSIONER: Mr Seck, we're dealing with your client's notice of motion. Is there anything else your client wishes to put in relation to the application per se, that is, Ms Danger's unfair dismissal application? SECK: On the merits? COMMISSIONER: On the merits and on remedy? SECK: As you point out, Commissioner, we're only dealing with the jurisdiction issue but I'll turn to the merits.
6. Counsel then referred to "numerous decisions both of this Commission and the Fair Work Commission which has examined whether or not a direction made to employees to vaccinate against COVID-19 is lawful and reasonable…". Submissions were then put going to the merits of the applicant's unfair dismissal application. Counsel sought leave to put on further evidence to deal with the question of remedy.
7. The applicant made submissions going to the merits of her unfair dismissal application and raised the issue of the notation by Mr Cobham on the Form P1050 (at [3]-[4]).
8. Given that the applicant had indicated that she was not seeking reinstatement or re-employment, it was accepted by the parties that, if the respondent's jurisdictional objection was not upheld, the only available remedy for the applicant would be monetary compensation.
9. Directions were made for the filing and serving of further material by the parties going to the merits of the applicant's unfair dismissal application and the question of remedy. The respondent was to file and serve any further material to be relied upon by 14 March 2022 and the applicant by 21 March 2022. The parties were requested to provide the Commission with an indication as to whether or not they were content for the matter to be determined by me "on the papers" in order to save costs. No mention was made, at that time, by counsel for the respondent of any perceived jurisdictional impediment to the matter being determined in that manner.

Respondent's jurisdictional objection

1. On 2 March 2022, the Industrial Registrar received email correspondence from solicitors acting for the respondent seeking that the matter be listed before me "as soon as possible". The correspondence continued as follows: The basis for the application arises out of the hearing of the Respondent's notice of motion on 31 January and 21 February. Even though the matter was listed for hearing of the notice, Commissioner Murphy indicated that he intended to hear the merits of the application including remedy at the same time as the notice of motion on jurisdiction. To that end, during the hearing on 21 February 2022, Commissioner Murphy made orders for the filing and service of evidence and submissions on the substantive merits of the application, including with respect to remedy as follows: * The Respondent to file and serve evidence and submissions by 14 March 2022; and * The Applicant to file and serve evidence and submissions by 21 March 2022, (Orders). We have a concern in relation to the Orders that we wish to raise with the Commission and which we had not considered during the 21 February hearing. The jurisdictional question which was the subject of the part-heard hearing is yet to be determined, and accordingly a Conciliation pursuant to s 86 of the Industrial Relations Act 1996 (IR Act) has not yet occurred.
2. The correspondence then set out s 86 of the Act and noted that conciliation had not occurred and "can only occur where there has been a dismissal". Paragraph 6 of Practice Note 17A of the Commission's practice notes, which deals with "Preliminary Issues" was also set out. It was then "respectfully" submitted that the "Commission does not have the jurisdiction to hear the substantive matter prior to a determination of the jurisdictional issue canvassed in the Respondent's Notice of Motion. If we are correct on this, the Orders are ultra vires or pre-emptive". The request was made for "this matter" to be brought to my attention to "relist the matter for the making of appropriate directions to address the above issue".
3. The matter was relisted before me on 10 March 2022. Counsel for the respondent essentially restated the matters set out in the email of 2 March 2022 from the respondent's solicitors. I indicated to the parties that I proposed to issue an ex tempore decision on the respondent's motion later that day.
4. The ex tempore decision which I issued on 10 March 2022 determined the threshold issue raised in the Notice of Motion filed by the respondent which sought an order effectively striking out the applicant's unfair dismissal application on the ground that she had not been dismissed but had resigned (Danger v Commissioner of Police [2022] NSWIRComm 1015). The respondent's motion was supported by an affidavit sworn by Kristy Walters, Director, Police Link Command. I reproduce parts of that ex tempore decision below (with a number of corrections italicised): 10. It appears that an issue had arisen between the applicant and her managers with respect to the requirement to comply with a COVID-19 vaccine mandate which had been authorised by the respondent, the Commissioner of Police. 11. A number of documents were issued on 7 September 2021 by the then Commissioner of Police, Mr M Fuller. One such document was headed "COVID-19 Vaccination Mandate direction" and included the following: 1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. If the duties are performed on or after 30 September 2021 the member has received at least 1 dose of a COVID-19 vaccine; and b. If the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence. … Failure of a NSWPF member to comply with this direction will ultimately result in management action. Given the effort of all members of NSWPF to date during the pandemic, I trust this will not be necessary and members come together to protect themselves, their colleagues and members of the NSW community. Michael J Fuller Commissioner of Police 7/9/21 12. A further document issued on 7 September 2021 by the respondent was headed "OFFICIAL INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information in response to COVID‑19 Vaccination Mandate direction". This document contained the following: You are required to provide NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccination information"). The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety, as well as that of your colleagues and the community you serve. Your vaccination information may also be used in relation to your eligibility to undertake work under the NSWPF's user charges scheme. You must provide your vaccination information if required to do so by your manager, supervisor or Commander. Failure to provide your vaccination information may result in management action and affect your eligibility to work under the NSWPF's user charges scheme. You can request access to the information you provide. Access can be requested through the SAP system or via your Commander/Manager. You can also request that your personal or health information held by the NSWPF be amended if you believe the information is not accurate. … THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS 13. A further document, also issued by the respondent on 7 September 2021, was headed "INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information - Voluntary" and contained the following: If you have received the COVID-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register. If you are unable to receive a COVID-19 Vaccination due to a medical contraindication, you are requested to provide the NSWPF with a medical contraindication certificate. The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety, as well as that of your colleagues and the community you serve. Your vaccination information may also be used in relation to your eligibility to undertake work under the NSWPF's user charges scheme. You have not been directed or required to provide your vaccination information. You can request access to the information you provide. Access can be requested through the SAP system or via your Commander/Manager. You can also request that your personal or health information held by the NSWPF be amended if you believe the information is not accurate. … THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS 14. The applicant was advised by her manager, Andrew Cobham, by email dated 10 September 2021 as follows: Hi Moana, Thank you for coming to see me today regarding the Commissioner's mandate for vaccination. My understanding is: Anyone who has not received the first dose of vaccine by September 30th will be stood down using their own entitlements until they receive their first dose Anyone who has received their first dose of vaccine but not their second dose by 30th November will be stood down using their own entitlements until they receive their second dose. EXCEPTIONS If you wish to state your case for either deferment or exemption of vaccination, this needs to be put in writing by 30th September. This submission would need to include reasons / rationale / intention moving forward. If you are seeking exemption, you will also need to submit the SNSW approved 'Contraindication Medical Exemption' form, completed by your Doctor. Command will submit this to HR and WorkForce advisory for feedback and advice before any decision is made on further action. (This has changed from OGC and WorkForce Advisory as I mentioned to you earlier and may be subject to further change). Unfortunately at this point in time, what 'further action' is remains unknown. It is also unclear who will ultimately make a decision. The Commissioner's mandate talks to the Commissioner's delegate, but does not go so far as to say who that is. I imagine the first action would be per above, to stand down using your entitlements unless you choose LWOP (if that is given as an option) until a final decision is made. I can support your request to be given time within your scheduled shift to complete your submission based on business needs. Please liaise with your Team Leader, Jemima, who will schedule 30 minutes secondment time where this can be accommodated within the forecast. If on the day, business needs dictate, the secondment may be cancelled but can be rescheduled. Due to current high volume work load, unfortunately I cannot guarantee that you will get the full 30 minutes undisturbed, however we will work with you and do our best. I'm sorry I can't be more informed than this but will keep you updated as I learn of any changes. Cobby. 15. In the event, the applicant did not provide her immunisation history, nor did she request an exemption. The applicant did raise a grievance with respect to what she regarded as private and unnecessary information being required of her. She was stood down without pay effective 1 October 2021. 16. On 18 October 2021, the applicant submitted a letter of resignation in the following terms: To Andrew Cobham, Please see the attached document before reading on. The attached document was headed "Resignation/Notice of Retirement from the NSW Police Force" and stated: I hereby tender my X resignation. Under the heading "Prime reason for resigning (please select one)" the following was stated next to the box "Other - please state your reason": Relative to the Covid 19 Mandate given 7 September 2021 and subsequent actions of the NSWPF The letter of resignation then continued: I'd like to again remind you of the impact the decision to stand me down without pay and answers has had on my mental wellbeing, psychological and physical health and financial situation. I have been stood down without pay for approximately 20 days now, and there remains no response to the privacy matters I initially raised, nor the grievance matter I forwarded. The handling of my grievance matter has not been consistent with the award, thus I have forwarded the matter appropriately to the relevant body. I have not made this decision lightly, however the NSWPF as my employer and it's questionable treatment of myself and other employees in my position has led to ongoing stress that has resulted in this decision. After I was threatened with the ambiguous phrase of "disciplinary action" which Kristy Walters confirmed may mean "counselling, loss of pay, loss of hours, or dismissal as an NSWPF employee", I have been impacted to the extent that this decision is necessary. There has been little-to-no communication from management as to my employment status after being dismissed and stood down from my duties since 30 September 2021. There has furthermore, been no communication since the end of the "7th day reminder period" which was approximately 10 days ago and counting. I am not sure what is expected of myself and the many others who are also in this position, but failing to inform and advise me, and keeping my employment in question is not something that is expected from a government body agency such as the NSWPF. The NSWPF is ultimately keeping my employment in a state of limbo for reasons that have not been communicated, in addition to standing me down without pay. Andrew, I'd like to thank you for the ongoing support throughout this difficult time and since the beginning of my employment in 2018. You have been an amazing, supportive & caring manager and I wish nothing but the best for you and your family in the future. I am truly thankful for the opportunity to have worked at the Police Link Command under your supervision for the period leading up to these events. Yours sincerely, Moana 17. The applicant did receive some income after she was stood down. Pay records tendered in the proceedings indicate that the last full pay that the applicant received was for the fortnightly pay period ending 30 September 2021. The applicant's payslip for the pay period ending 14 October 2021 indicates that she received base pay for 30 hours in the amount of $1,152.37 and, at that time, had an annual leave balance of 26.90 hours. For the following pay period ending 28 October 2021, the applicant's payslip indicates that she received base pay for 5 hours in the amount of $192.06, but her annual leave accrual was shown as 2.28 hours. On the applicant's payslip for the period ending 11 November 2021, it is indicated that there was an assertion that she had been overpaid with respect to the period 15 October to 28 October 2021 and her annual leave accrual was shown as 0.05 hours. 18. In the proceedings the applicant gave the following evidence: 19. On 18 October I submitted my four weeks' notice of resignation to Mr Cobham via email. I stated several reasons in this email as to what ultimately caused the decision… At this stage I felt I had no other choice as I had no way of making income nor was I receiving payment of wages. I was still required to ask the NSWPF permission before gaining 'secondary' employment and I was restricted in what employment I could take. No indication was given as to the timeframe I would remain in this situation. I was struggling financially and there was no indication as to whether I would have my duties reinstated or when my wages would be paid. Ms Walters would not confirm whether the Award internal grievance process was being followed and the timeframes stipulated in the Award were not being adhered to. I could not gain government assistance as I was still employed. Further, my initial privacy complaints continued to go unanswered. 19. The applicant claims that she was constructively dismissed. A leading authority on this area of employment law is the case of Allison v Bega Valley Council (1995) 63 IR 68. In that decision the Full Bench of the Commission (Peterson and Marks JJ, Connor CC) stated as follows (at 72): It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is, in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in a such as way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face it the employee appears to have given his or her resignation? 20. Applying the principles set out in Allison and other decided cases, in this matter I have no doubt that the real and effective initiator of the termination of the applicant's employment was the conduct of the respondent in: 1. Issuing contradictory directives as to the requirement for employees to produce their immunisation histories. 2. Standing down the applicant without pay and thus depriving her of income while her grievance about the requirement to provide her private medical information was being processed. 21. Despite the fact that the applicant's letter of resignation, which is set out above (at [16]), discloses that her decision was made after consideration of the circumstances that confronted her and was not given in the heat of the moment, I am persuaded that the applicant had no other choice other than to tender her resignation. 22. The respondent's Notice of Motion is dismissed. 23. I so order.
5. After I handed down this ex tempore decision, I advised the parties that the Chief Commissioner would be convening a conciliation conference on 17 March 2022 and I vacated the directions that I had made on 21 February 2022.
6. The conciliation conference proceeded before the Chief Commissioner on 17 March 2022 but the matter did not settle. Immediately after the conciliation conference concluded, I convened a directions hearing and listed the matter for hearing before me on 31 March 2022. I made directions for the filing and serving of any further material which the parties may have wished to place before the Commission, after noting that "Both parties have put on extensive evidence, which went well beyond the notice of motion that was filed, going to the issue of resignation".
7. On 23 March 2022, the applicant filed the following written submissions (footnotes omitted): BACKGROUND 1. The substantive background of this matter has been set out in the Applicant's previous written and verbal submissions. 2. The Applicant was dismissed from her employment at the NSW Police Force with her final day of employment being 15 November 2021. 3. The Applicant has not been paid her salary since 1 October 2021. 4. The Applicant was required to exhaust all her annual leave entitlements which she had earned throughout her employment, and these entitlements were therefore not available for her when her employment ceased on 15 November 2021. 5. The Applicant has not committed a serious workplace misconduct offence, or any criminal offence to warrant her 'unsuitable' for reemployment. This is uncontested. 6. No findings of misconduct were established against the Applicant. 7. The COVID 19 pandemic has had devastating effects, which has in turn caused employers to take mitigating steps to ensure the health and safety of its employees. The pandemic however does not void an employer's obligations to its employees, or its statutory or contractual obligations when implementing a direction. 8. The Applicant never refused to get a covid vaccine. 9. The Applicant did, however, raise concern with the reasonableness of the direction regarding its privacy requirement, the requirement to exhaust leave entitlements, the non-payment of her salary which followed and the overall implementation of the 7 September Covid Vaccine Mandate Direction (The Direction). 10. The Respondent concedes that it did not pay salary to the Applicant because she "refused to work as directed/ refused to do her normal workplace duties". The Respondent however also refused to consider its own obligations under the employment contract to ensure its directions were reasonable and lawful in totality. The Respondent furthermore refused to engage in discussion or any type of meaningful conversation or consultation with the Applicant or any other employees regarding reasonableness 11. The Respondent has not adhered to the Work Health and Safety Act (WHS) consultation requirements, nor did they observe procedural fairness principles in response to any issues raised by the Applicant regarding their direction. This created the 'stalemate' position and led to the Applicants dismissal. 12. The requirement to get a COVID 19 vaccine by certain dates, the requirement to provide a complete "Immunisation History Statement as it appears on the Immunisation Register" and the requirement to exhaust all leave entitlements are not "normal" and are not "workplace duties" of the Applicant. 13. The Respondent concedes that the Applicant "refused to provide evidence of a covid vaccine, after several conversations" had occurred with her. The Applicant concedes that only one conversation was had with her after speaking with her manager, Mr Cobham in person, and that Mr Cobham was not informed (as were his own words) nor was he able to respond to the Applicant's concerns. 14. The Applicant reiterates that she explicitly stated that she was not requesting an exemption/deferral from a vaccine. 15. The Applicant was vaccinated against COVID 19 in November 2021. The Applicant decided the get her first vaccine at this time as it was suitable and preferential for her considering she was not permitted to present at the workplace and was otherwise in lockdown. Three weeks later she got her second vaccine as recommended and she had no issues with this. 16. The Respondent is aware that the privacy requirement as stated on the 'Official Notice of Collection - Mandatory' document was excessive as confirmed by Ms Walters. The Respondent became aware of this prior to the implementation of the direction on 30 September 2021. 17. The Respondent also provides that their own Official Information Collection Notices were contradictory, confusing, and not reasonably or appropriately addressed before being enforced. 18. The Respondent is aware of what a reasonable construction of a direction is (particularly at its privacy element), having regard to the BHP case upon which they rely. The differences between the privacy element of the direction in that case are notably different to the privacy element of the direction in the present case. It is also emphasised that the construction of the direction in BHP came after the consultation requirement was met. 19. It is uncontested that "reasonableness cannot be considered in a vacuum". This is asserted in both the recent Mt Arthur Coal, and BHP cases. It is also asserted here. 20. There has been a repudiation of the employment contact on behalf of the Respondent. This accounts for the unreasonable privacy element of the direction, the unlawful implementation of the direction, the loss of the Applicant's employment and career in law enforcement, and the unsubstantiated mark against her name and reputation. 21. The Applicant therefore submits that her dismissal from her former employment was harsh, unreasonable, and unjust. CENTRAL MATTERS 22. The exercise of the Commission's powers in relation to unfair dismissal requires a determination as to whether a particular dismissal was harsh, unreasonable, or unjust or all three. 23. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission based on the evidence in the proceedings before it. 24. In circumstances where the Commission finds that the dismissal of an employee was in all the circumstances of the particular case, "harsh, unreasonable or unjust", the Industrial Relations Act (the Act) provides remedy. 25. The remedy sought by the Applicant is 24 weeks compensation, and for the mark "unsuitable for re-employment" to be completely removed from the Applicant's employment record at the NSW Police Force. 26. The Applicant requests this amount of compensation having regard to the loss of her employment which would otherwise still be on foot, and the length of these proceedings which still sees the mark "unsuitable for reemployment" against the Applicant's name at the NSW Police Force, as well as a persistent refusal to remove it despite being directed to. 27. In Byrne it is established that "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 !he 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." It is submitted here that considering this, the Applicant's dismissal was harsh, unjust and unreasonable. UNJUST, UNREASONABLE & HARSH 28. Employees are only obliged to follow directions that are both lawful and reasonable. Refusal by an employee to comply with an unlawful or unreasonable direction will not justify the employer taking disciplinary action. 29. The Applicant continues to submit that the privacy element of the direction was unreasonable and excessive. The Applicant submits that the BHP case determines and provides the basic framework for how a reasonable privacy requirement would be constructed. 30. The Applicant was denied procedural fairness. This is having regard to the complete dismissal of her privacy complaints set out in her Godfrey Report of 29 September 2021 to which she received a response that her "request for exemption had been denied'. This came after explicitly stating that she was not requesting an exemption however believed the privacy matters required attention. The response provided brings into consideration whether the Godfrey Report she submitted was ever read by the Respondent. 31. The Applicant was denied procedural fairness having regard to the act of restricting her access to workplace policies around the 'internal grievance' complaint avenue and deterring her from making such a complaint. 32. A non-observance of procedural fairness principles is also evident having regard to the handling of the internal grievance complaint once the Applicant was able to properly raise it. The Respondent in turn managed the internal grievance complaint inconsistent with the Award process despite numerous requests on the Applicant's behalf to have the matters addressed in accordance with it. 33. Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct. It also requires that where an employee has been warned that their conduct or performance is less than satisfactory or the employee is asked to give an explanation regarding an allegation concerning conduct or performance, the employee must first be given sufficiently detailed information about the nature of the allegations and an adequate opportunity to refute those allegations or remedy the deficiencies alleged by the employer. 34. Successive Full Benches of the Commission have stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to, and including, the dismissal. The decision of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211 at [118] reflects that view stating; "this matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair". 35. The Applicant submits that what has occurred regarding the management and consideration of her Godfrey Report was approached as though it were a "hollow" obligation and only for "technical significance" and that the Respondent in no way genuinely considered or appropriately addressed the Applicant following the submission of this report. 36. In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Full Bench said at 389 and 390: "We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures, which are unfair, and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust." 37. It has been said that a decision which is the product of unfair procedures may be arbitrary, irrational, or unreasonable. And notwithstanding the underlying issues, the present case provides the Respondent engaged in unfair procedures. 38. Antonakopoulos v State Bank (1999) 91 IR 385 at [page 390], finds that a; "failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commissioner as a part of the consideration of an application brought under s.84 Further as we have noted, where procedures are specified in an industrial instrument or by administrator action, a failure by an employer to apply or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust". 39. The Applicant concedes that she was not given a genuine opportunity for her concerns to be addressed nor were they heard. It is noted here that when she did raise her concerns, she was met with a disproportionate response. 40. When the factual matrix surrounding the Applicant's dismissal is considered, the breaches of procedural fairness, the manner of her dismissal, the Respondents failure to consult with her personally, the Respondents refusal to correct or amend their directions or receive responses to their direction, and the direction in its construction and implementation itself, is sufficient in itself to endorse a finding that the dismissal was harsh and procedurally unfair. 41. The Applicant was restricted from returning physically to the workplace after 1 October 2021 for the reason of misconduct. The Respondent provides that her misconduct was that she "refused to follow a reasonable and lawful direction". The Respondent stopped paying the Applicant her salary from this day and simultaneously required that she exhaust her leave entitlements starting this day. 42. It is open to an employer following an investigation into allegations of serious misconduct made against an employee to accept, on the balance of probabilities that the allegations are substantiated. The Applicant notes however that before the allegations even began being investigated, let alone substantiated, the Respondent dismissed the Applicant by way of non-payment of salary, restriction from policies/procedures/complaint forms and the inability to observe procedural fairness and consultation requirements. 43. Further to this, the Applicant submits that she did not commit any misconduct, or serious misconduct offence against the Respondent which warranted such treatment, particularly the continuing 'strike' against her name that she is unsuitable for reemployment. 44. The response the Applicant received was severely disproportionate (especially the non­payment of salary), for the circumstances. The Applicant worked in a call centre, where she always adhered to COVID 19 counter measures (wearing masks, checking temperature before shift, staying home when sick et cetera). 45. The Applicant's specific role and place of work was a call centre, was never public facing and the risks of covid spreading in her workplace were only deterred via some means, but not all available means (ie. no deep cleaning services after a covid positive worker was at the building for 3, eight hour shifts). 46. The Applicant attempted via all appropriate and available means to raise concern with the privacy element of the direction and that it was unreasonable to require such a large excessive document, she also made light of the fact that she relied on her income and that it were unlawful to not only stop paying her salary, but also to additionally require her to exhaust her leave entitlements she had previously earned. 47. The Applicant never presented at the workplace after the mandate came into effect and as such never exposed her colleagues to the risk she then posed. As such, the Applicant was obedient not to present at the workplace for the Work Health and Safety measure, however this did not void the obligations that were also endowed on the employer at that time, which have been discussed at length in all the Applicant's submissions. 48. It is understood that the COVID 19 pandemic is an important issue that need be dealt with appropriately by all employers and in this case particularly employers who have a public facing, critical function in NSW. This need does not however override the obligations on the Respondent as an employer to its statutory and contractual obligations and to ensure it acts reasonably and lawfully in respect to each member of its workforce. Indeed, the entire function and necessity of procedural fairness principles, WHS consultation requirements, and employment contracts is to ensure that when circumstances arise, both parties behave and operate in a fair, reasonable, and acceptable manner. 49. It is submitted here that the Respondent did the exact opposite in the present case. In fact, the Respondent approached the implementation of the direction with an aggressive, unreasonable approach which was to financially detriment anyone who had reservations or oppositions to the direction (or any of its parts), as well as restrict them from raising any concerns with the direction. 50. The Respondent also deemed the Applicant as 'unsuitable for reemployment' not for any reasons of misconduct, but because she has raised questions and concerns with the construction and implementation of a direction which provides fault on the Respondents part. This is not a proportionate or reasonable response to what has actually occurred and has a long-standing impact on the Applicant's reputation and future employability. ADDITIONAL MATTERS 51. The Respondent required the Applicant to exhaust all her leave entitlements as they had chosen not to pay her salary after suspending her from duties. The requirement to exhaust her own leave entitlements is contrary to the Award, and the refusal to pay salary is contrary to the contract and the common law. 52. The refusal to pay the Applicant's salary has been discussed at length in the Applicants first written submissions, whereby the Applicant asserts that the Respondent was obligated to treat her 'suspension due to misconduct' appropriately, thus on full pay. The Respondent was aware of this obligation having regard to their own internal policies, and the advice of the Police Association of NSW President who made this apparent to this Respondent as early as 6 October 2021... 53. The BHP case upon which the Respondent relies provides the Commission (and other employers going forward) what shall be considered as 'reasonable' regarding this type of direction (particularly the privacy element). The determination made there provides the scaffolding for what should be the minimum requirements for employers to consider when bringing into effect a direction of this kind. The Applicant emphasises the remarkable difference in the determination made there in comparison to the direction in the present case. It is of significance that the BHP direction was explicit in not 'requiring' any of the forms of evidence (with the consideration of it being consensually provided), that there were multiple forms and avenues in which employees there could provide their information and it provides a direction which has been entered into after genuine consultation with its employees. REMEDY MATTERS 54. The Applicant has not applied for any other employment opportunities since her employment ceased with the NSWPF for a number of reasons; a. The Applicant has completely self-represented herself in these proceedings, including do most if not all of the researching, writing, preparing, attending all hearings and attempting to do as much legal work as possible in order to present her case before the Commission appropriately and robustly. This came with a significant workload which took priority in settling her matter with the Respondent. The Applicant notes the extensive amount of time it has taken to finalise this matter was not expected and that the proceedings have been drawn out repeatedly at the Respondents request resulting in a significant amount of time which requires the Applicant's attention and efforts. The Applicant notes that she has continuously behaved in a manner consistent with the Act and expectations to ensure a timely, just and cost-effective resolution to these proceedings. b. At the beginning of the proceedings the Applicant was not sure if she would be reinstated to her role as she had originally requested to be reinstated. It became apparent however that the employment relationship had irreparably severed and that although she had originally requested reinstatement, she later solely requested not to be considered as "unsuitable for reemployment". c. The Applicant further notes that she has always been concerned by the fact that the Respondent has put a strike against her name in her employment records at the NSWPF which claim the Applicant is not suitable for re-employment. This has a damaging effect on the Applicant and her reputation going forward into any other roles of employment. The Applicant has spent significant time and effort in correcting or addressing this before seeking other work considering the impact it causes. It is also noted that the Applicant requested the Respondent provide her with confirmation that the strike had been removed after the Commissioner directed the Respondent to remove it from the record. The Applicant advised the Respondent that the reason she wanted the confirmation was due to the impact it had on her employment and employability going forward. The Respondent did not respond to this request. d. The Applicant was working 3 five hour shifts at the time of her dismissal according to her maternity leave arrangement which was set to increase every six months to account for her home and personal duties following having her child. The Applicant had however continued to look at job opportunities which could become available for considering her limited hours of availability but has not solidified any employment as yet. In addition to this; e. The Applicant has now made plans to relocate interstate to live with family as her current financial position cannot accommodate renting. This has also been considered when seeking future employment. PROCEDURAL MATTERS 55. The Applicant also submits that the conduct of the Respondent throughout these proceedings has been to unduly lengthen the proceedings and require the Commission and Applicant to 'work around' their schedule, availabilities and needs. Emphasis is given to the fact that the Application was brought before the IR Commission in November 2021, and at the Respondent's request on a number of occasions, all parties including the Commission itself are still hearing the matters despite both parties having significant time, ability and liberty to provide the Commission with the relevant materials for this case to be heard in a timely manner. In Kabir v Department of Family and Community Services ([2016] NSWIRComm 1009), Commissioner Newall states [at 13]: "This Commission, in particular, is a body of limited resources, and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due despatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission''. The Applicant notes that as she is self­represented, particular effort and time is being spent on these proceedings and correcting the matters (especially that she has a strike of "unsuitable" marked against her name), rather than seeking alternative employment where her efforts are required. 56. Further to this, the Respondent has refused a direction of the IR Commissioner to remove the remark against the Applicant's name that she is 'unsuitable for reemployment' claiming that the Respondent has the ultimate right to make that determination without the input of the IR Commission. This however is contested by the Applicant. 57. The Commissioner of Police indeed has right to determine who he/she considers suitable for office or employment in the NSW Police Force, however it is indeed the obligation and jurisdiction of the IR Commission to determine the lawfulness and fairness element of such a determination. 58. Further to this, the IR Commission and IR Act have the jurisdiction and ability to not only reinstate and/or reemploy someone into a former role or position, but as such, an IRC Commissioner of course has the power and function to determine whether the Applicant is in fact 'suitable for reemployment' - this is particularly so in the instance there is no finding of misconduct made out by the employer internally which is the case presently. 59. The response of the Commissioner of Police in this regard not only provides disrespect for the function of the IRC but also provides contempt for the determinations it makes. 60. In refusing to adhere to what the IRC Commissioner directs or determines as fair/unfair, it provides that the Commissioner of Police believes he/she has the ultimate and final say despite the determination of an IRC Commissioner whose entire function is to fairly make these determinations so that employers cannot misuse this power. 61. The Applicant submits that the Commissioner of Police has a right to determine who is suitable for office as per the Police Act, however it is submitted that the IR Act provides a superseding right to IR Commissioner's to determine whether or not that finding stands and whether it is a fair and substantiated determination. 62. Attention is also brought to the Award at 9.10 which states that "The staff member, Association, and the NSW Police Force shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute". The Applicant submits that the determination made by Commissioner Murphy on 21 February 2022 to remove the strike is one of these determinations and that the NSW Police Force have agreed to be bound by it. DETERMINATION 63. Having regard to these matters, the Applicant submits that her dismissal was unjust, unreasonable, and harsh.
8. The respondent relied upon the following written submissions filed on 30 March 2022 (footnotes omitted): RESPONDENT'S OUTLINE OF SUBMISSIONS ON MERITS Background … 3. On 31 January and 21 February 2022, the Notice of Motion was heard before Commissioner Murphy (Jurisdictional Proceeding). 4. On 10 March 2022, the Notice of Motion was dismissed and the Commission found that the Applicant was constructively dismissed. The matter was accordingly timetabled for a substantive hearing. 5. On 23 March 2022, the Applicant filed her submissions on the substantive merits of the application (Applicant's Substantive Submissions). 6. The Applicant submits that she 'never refused to get a covid vaccine' but did however raise concern with the reasonableness of the evidence requirements of the Commissioner's Direction (Direction). 7. It is not in dispute between the parties that the Applicant had not complied with the Commissioner's Direction by way of failing to be vaccinated by the specified dates and at all material times thereafter prior to her dismissal, and failed to provide any form of vaccination evidence prior to her dismissal. 8. Accordingly, the Respondent submits that the Applicant's dismissal was not harsh, unreasonable or unjust and the Application should be dismissed. Harsh, Unreasonable or Unjust 9. To be entitled to any remedy, the Applicant bears the onus of establishing that the dismissal was harsh, unreasonable or unjust. 10. The Respondent submits that the Applicant's dismissal was not: (a) unjust because the Applicant was unable to attend the workplace and discharge the duties of her position due to being unvaccinated and failing to provide evidence of any kind of her vaccination status at all material times; (b) unreasonable because the Applicant had been unable to perform her role since 30 September 2021 as she was unvaccinated and her dismissal was consistent with the natural consequences of non-compliance with a lawful and reasonable direction in the form of the Commissioner's Direction; (c) harsh because the Applicant was given multiple opportunities to comply with the Commissioner's Direction via avenues that addressed her privacy concerns. 11. ln determining whether a dismissal is harsh, unreasonable or unjust, the Commission must consider the matters set out in section 88 of the IR Act, which include: (a) whether a reason for the dismissal was given to the applicant; (b) if any reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for the behaviour or to justify reinstatement; (c) whether a warning of unsatisfactory performance was given before the dismissal; (d) the nature of the duties of the applicant immediately before the dismissal; (e) whether or not the applicant requested reinstatement or re-employment with the employer; and (f) such other matters as the Commission considers relevant. 12. In light of all the factors, the termination of the Applicant's employment was not harsh, unreasonable or unjust. We deal with these factors below. Notice of the reason for dismissal 13. The Applicant was notified for the reason for her dismissal by way of the P1050 form (Form) which was filled out by Mr Andrew Cobham on 19 October 2021... 14. The Form relevantly provided 'As at date 19/10, Moana is not suitable for reemployment as she has not provided evidence of COVID19 vaccination per the Commissioner's directive. If this were to change, I would consider Moana suitable for re-employment.' Nature of reason for dismissal and whether the reason had basis in fact 15. As is noted above, the Applicant was dismissed due to her failure to comply with the Commissioner's Direction to provide reasonable evidence of vaccination and to be vaccinated against COVID-19 by the specified times. 16. It is not in dispute between the parties that the Applicant was unvaccinated at all material times, and failed to provide any form of vaccination evidence whatsoever, or indeed confirm her vaccination status. Opportunities to make out a defence 17. The Applicant engaged in ongoing correspondence and communication with officers of the NSWPF regarding the Commissioner's Directions and her privacy concerns including by way of: (a) Godfrey Report dated 29 September 2021; (b) 2 October telephone conversation; (c) 6 October 2021 Letter; (d) 6 October internal grievance; and (e) 21 October external privacy complaint. 18. Further, had the Applicant been vaccinated prior to dismissal, it would have been open to her to provide her COVID-19 Vaccination Certificate, as she did on 21 February 2022 during the Jurisdictional hearing. 19. Having regard to uncontested evidence of Ms Kristy Walters, the provision of vaccination evidence, such as the COVID-19 Vaccination Certificate would have been favourably considered by the NSWPF, and would have lead to an ongoing employment relationship. 20. In fact, the Applicant was advised as early as 23 September 2021, that she was not required to provide her full immunisation history statement and could instead rely on alternative methods to prove compliance with the Commissioner's Direction. Moreover, 129 of Ms Danger's colleagues provided either redacted versions of their immunisation history statement, receipt of proof from the relevant hospital/vaccination hub or a COVID-19 Vaccination Certificate in order to prove compliance with the Commissioner's Direction, which was accepted by the NSWPF. 21. Accordingly, the Applicant was provided multiple opportunities to rectify her failure to comply with the Commissioner's Direction, but did not do so because of an erroneous and unreasonable belief that her privacy concerns arising from the Information Collection Notices exempted her from the need to be vaccinated by the stipulated dates. 22. Finally, even if the Applicant's concerns in relation to privacy were addressed by the Respondent to the Applicant's satisfaction, it would not have altered the fact that at all times between 30 September 2021 and 15 November 2022 (sic 2021), being her final day of employment with the NSWPF, the Applicant had not received even one dose of the COVID-19 vaccination. Whether a warning of unsatisfactory performance was given before the dismissal 23. The Applicant's dismissal was not related to unsatisfactory performance. The Commission need not consider this factor. Other relevant matters 24. The determination of this matter turns on whether the Commissioner's Direction is found to be lawful and reasonable, and consequently whether the Applicant's failure to comply with the same by: (a) failing to receive one dose of a COVID-19 vaccine by 30 September 2021; (b) failing to receive two doses of a COVID-19 vaccine by 30 November 2021; and/or (c) refusing to provide vaccination evidence in a form requested by management as occurred on multiple occasions, including in particular: i. 23 September 2021 via email; and ii. 2 October 2021 via telephone. 25. Despite the contentions found in the Applicant's Substantive Submissions, the Applicant has conceded that the Commissioner's Direction she be vaccinated against COVID-19 by the specified dates is lawful and reasonable. This is consistent with the authorities before the Fair Work Commission. 26. In particular, in her Affidavit dated 18 January 2022 and filed in the Jurisdictional Proceeding the Applicant stated, 'I believed the requirement for an employee to present a manager/team leader with their International COVID 19 Vaccination certificate (used to board international flights and pertaining only to COVID 19 vaccines would perhaps be reasonable), the evidence demonstrates that at all relevant times, the Applicant refused to provide any evidence or even disclose her vaccination status. 27. To the extent that issue remains in dispute (which the Respondent submits is not available given the Applicant's concessions), the Respondent continues to rely on the Respondent's Further Submissions dated 18 February 2022, which explicitly addresses the lawfulness of the Commissioner's Direction. Failure to follow a lawful and reasonable direction 28. The Applicant failed to follow a lawful and reasonable direction to be vaccinated by the stipulated dates, and accordingly was not able to perform her duties. 29. The Applicant was explicitly made aware on numerous occasions that NSWPF staff were unable to perform duties if they did not comply with the Direction. 30. The uncontested evidence demonstrates that employees of the NSWPF who provided forms of vaccination evidence (other than a full immunisation history statement) were not dismissed from their employment. 31. lt is further not in contest, that the Applicant was made aware, and understood that she could provide either: (a) COVID-19 Vaccination Certificate; (b) a redacted vaccination immunisation history statement; or (c) receipt of proof of vaccination (ie Gosford Hospital with date of vaccination). 32. The above options of vaccination evidence directly addressed any privacy concerns arising from the provision of the full immunisation history statement, and did not require any medical information that was not directly related to the Applicant's COVID-19 vaccination status. 33. Further, the Applicant conceded under cross examination that she understood that had she provided vaccination evidence in those lesser forms identified, they would have been accepted by the NSWPF. 34. In fact, the Applicant confirmed in writing on 6 October 2021 that she was aware she could provide her COVID-10 Vaccination Certificate to satisfy the vaccination evidence requirement, but expressly chose not to. 35. Under cross examination, the Applicant conceded the same multiple times, and suggested that she had 'not thought about' providing alternative vaccination evidence. 36. In actual fact, the Applicant was unable to provide any form of vaccination evidence prior to dismissal, because she was simply not vaccinated. 37. As such, the Applicant simply failed to comply with a lawful and reasonable direction to be vaccinated by the stipulated dates, irrespective of the form of vaccination evidence that she was directed to provide. Remedy 38. The Application should be dismissed, as the Applicant's dismissal was not harsh, unjust or unreasonable in all the circumstances. 39. To the contrary, at all relevant times prior to the termination of employment, the Applicant was not vaccinated and non-compliant with the Commissioner's Direction. 40. To the extent that the Applicant raised concerns regarding the evidence requirements of the Commissioner's Direction, this is no answer to her failure to be vaccinated by the stipulated dates. 41. In the event that the Commission finds that the dismissal was unfair, the Respondent notes that the Applicant does not seek reinstatement or re-employment. 42. Rather, the Applicant seeks compensation. If compensation were to be awarded, it should be at the lower end of the scale, having regard to the issues identified by the Respondent above. 43. It must also be observed that it is incumbent on the Applicant to mitigate her losses. The Applicant has not led any evidence of loss following dismissal, and the documents produced under summons… demonstrate that the Applicant has made no effort whatsoever to mitigate her loss or seek alternative employment more broadly. Further it is not sufficient for the Applicant to simply sit on her hands and just await the outcome of these proceedings, even if she believes she has a good case. 44. Accordingly, in the event that the Commission does find that the Applicant's dismissal was harsh, unjust or unreasonable (which is denied), any monetary compensation awarded to the Applicant must be reduced having regard to her express failure to take reasonable steps to mitigate her loss. 45. Further, the applicant seeks an order that the Commissioner of Police amend the P1050 Form to remove 'the mark unsuitable for re-employment.' 46. As is noted above at paragraphs 14 -15 of these Submissions, the Form accurately reflects the dates by which the Applicant had failed to provided evidence of vaccination, and the Applicant has not led any further evidence to suggest she is marked as unsuitable for re-employment in any other regard. 47. In any event, the Respondent submits there is no power available under section 89 of the IR Act to compel the Commissioner of Police to amend an internal business record, as this does not fit into the scheme of reinstatement, re-employment and compensation contemplated by the IR Act in response to unfair dismissal applications. Conclusion 48. For the reasons set out above, the application should be dismissed.

Determination

1. The case presented by the respondent included reference to a document titled "INFORMATION COLLECTION NOTICE" which was issued to members of the NSWPF in March 2021 and which contained the following: If you have received the COVID-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register. The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety in addition to your eligibility to undertake work under the NSWPF's user charges scheme. You are not required to provide your vaccination information. However, if you choose not to provide it, this may affect your eligibility to work under the NSWPF's user charges scheme, and some other specific duties from time to time.
2. On 7 September 2021, a document titled "COVID-19 Vaccination Mandate direction" was issued by the then Commissioner of Police, Mr M Fuller ("Commissioner's vaccination mandate direction") (see paragraph 11 at [18]). This document directed that "all members of the NSWPF (officers and administrative staff… cannot perform any duties" unless vaccinated against COVID-19 by 30 September 2021 (at least one dose) and by 30 November 2021 (at least two doses). It was further stated, "If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence". This directive does not state what constitutes "vaccination evidence" but that matter was dealt with in two other notices issued on the same day by the Workforce Safety Command which are discussed below. The Commissioner's vaccination mandate direction does not direct employees to become vaccinated by certain dates, but does state what the consequences and potential consequences (ie "management action") will be for failure to become vaccinated. The applicant was cross-examined about the Commissioner's vaccination mandate direction as follows: Q. You understood that this was a direction which was given by the Commissioner of Police directing police officers and other members of the NSW Police Force to provide evidence that each member has been vaccinated by receiving two doses of the Covid-19 vaccination correct? A. Yes I understood that there was a direction that would be come into play on 30 September that direction had three main points to it. The first is the dates when you had to be vaccinated against Covid-19, the second was regarding vaccination evidence which was supported in the information collection notice and the third was regarding contra indication. I understood that. … Q. …Go to number 2 on the page where it says "If required by member's manager supervisor or commander a member must provide vaccination evidence" do you see that? A. Yes. Q. Obviously Commissioner Fuller's direction did not specify the content of the vaccination evidence to be provided in that document correct? A. It appears the Commissioner has directed managers supervisors or commanders to require the evidence and in doing so, official information collection notices released on the same day which supported that requirement. Q. I'm just asking you about this document Ms Danger and try to answer my question. When you read the direction all it refers to is a member being required to provide vaccination evidence if required by a manager, supervisor or commander correct? A. Yes.
3. On 7 September 2021, a notice was issued titled "OFFICIAL INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information in response to COVID-19 Vaccination Mandate direction" (see paragraph 12 at [18]). I will refer to this document as the first information collection notice. The first information collection notice contained the following: You are required to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccination information"). … You must provide your vaccination information if required to do so by your manager, supervisor or Commander. Failure to provide your vaccination information may result in management action and affect your eligibility to work under the NSWPF's user charges scheme. … Workforce Safety Command Release Date: 07.09.2021 Version: 1 Page 1 of 1 THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS
4. Again, on the same day, 7 September 2021, another notice was issued titled "OFFICIAL INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information - Voluntary" (see paragraph 13 at [18]). I will refer to this document as the second information collection notice. The second information collection notice contained the following: If you have received the COVID-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register. … You have not been directed or required to provide your vaccination information. … Workforce Safety Command Release Date: 07.09.2021 Version: 1 Page 1 of 1 THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS
5. On its face, the first information collection notice (at [25]) required the provision by the applicant to the NSWPF of a copy of her immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate, and to provide this "vaccination information", if required to do so by her manager, or risk "management action". The notice does not state that the applicant's manager is authorised to accept any alternative documentation to the immunisation history statement as recorded on the Australian Immunisation Register as satisfying the requirement to provide "vaccination information".
6. The second information collection notice (at [26]) is couched in similar terms to the notice issued in March 2021 (at [23]) but, like the first information collection notice, this notice is said to supersede all previous versions and is "OFFICIAL". On its face, the second information collection notice requests, rather than requires, provision by the applicant to the NSWPF of a copy of her immunisation history statement as recorded on the Australian Immunisation Register. The second information collection notice also positively states that employees "have not been directed or required to provide" their vaccination information and no reference is made to possible "management action" for failing to do so.
7. No satisfactory explanation was provided by the respondent as to why these two quite clearly contradictory information collection notices were both issued by Workforce Safety Command on the same day, 7 September 2021; why both were said to be "Version: 1 Page 1 of 1"; why both were said to supersede "ALL PREVIOUS VERSIONS"; and why both were marked "OFFICIAL".
8. The respondent attempted to explain the inexplicable by reference to Clause 4 of Schedule 1 of the Health Records and Information Privacy Act 2002 which took the matter nowhere. Further, no satisfactory explanation was provided by the respondent as to why an employee's immunisation history statement as recorded on the Australian Immunisation Register, which contains personal medical information going well beyond the employee's COVID-19 vaccination status, was required and/or requested when Australian Government issued COVID-19 vaccination certificates were readily available to vaccinated employees. Ultimately, counsel for the respondent, in a masterpiece of understatement, was driven to concede: It could've been done better. It could've been done better (T 31/03/22, P 49 L 46)
9. Another document promulgated by Workforce Safety Command on 7 September 2021 was titled "OFFICIAL COVID-19 VACCINATION FREQUENTLY ASKED QUESTIONS" ("FAQ document"). The FAQ document contained the following: 1.12 Do I get a certificate or other proof of vaccination? Vaccinations will be sent to the Australian Immunisation Register (AIR) which is accessible via MyGov. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence. Vaccinations will appear on the Medicare App if linked to MyGov. Please follow the user guide below to obtain proof of vaccination: There then followed a number of hyperlinks.
10. The applicant was cross-examined about this document as follows: Q. You received the FAQ at the same time as the all staff email from Ms Walters is that correct? A. I received this with a number of other documents yes, I received it on the 10th when I arrived at work. Q. Go to page 9 and section 1.12 of the FAQ. I'm using the page numbers in the bottom right hand corner Ms Danger not the internal document number. A. Yes okay sorry I'm just reading it. 1.12 page 9. Q. You see where it says "Do I get a certificate or other proof of vaccination" do you see that section? A. Yes. Q. Do you recall reading that section when you see the direction? A. I do remember looking over it and seeing reference to the information collection notices and like I said there was a multitude of documents required to be read so I don't actually right now recall reading exactly this. I did receive it in my inbox alongside the other documents received. Q. Do you have a MyGov account Ms Danger? A. Yes. Q. You know if you can access your Australian Immunisation register on your MyGov account? A. Yes I've accessed it. Q. You understand your vaccination records are contained on your MyGov account that's correct? A. Yes, well they're like produced there I think. I think they're actually contained in the immunisation register. They are. Q. Do you see in the second sentence Ms Danger it says "Vaccinations will appear on the Medicare app if linked to MyGov" do you see that? A. Yes I can see that. Q. Did you have the Medicare app at the time you received this FAQ? A. I'm not sure if I had the Medicare app or if I had it on my MyGov. Like connected to it. I don't have an app for it. It's linked to MyGov. So it's linked to MyGov but I don't know if I have an app for it. Q. Do you see the heading it says "Do I get a certificate or other proof of vaccination" you understood from reading that, that you could either - you could get a certificate or other proof of vaccination to demonstrate that you were compliant with the vaccination mandate imposed by the Commissioner of Police that's correct? A. So no what I'm reading here is a fact sheet however what I did take as what was required of me under the direction came from the information collection notice, the official information collection notice which I've supplied in my - attached to my affidavit this being a fact sheet also came with a number of other things about everything and I was making reference to the official requirements that the police...(not transcribable)... when I was an employee. I agree that other records are available to have been required to provide and this shows that however it doesn't give mention to why the most excessive document is the required one so what I didn't regard this as something that gave me option when the official document told me what I had to provide - required to provide. (T 31/01/22 P 35 L 21 - P 36 L 25)
11. Also, on 7 September 2021, Ms Walters sent an email to the staff of Police Link Command with the subject line "FW: Mandatory vaccination for police employees [SEC=OFFICIAL]". That email contained the following: 1. If you have received both doses of your COVID19 vaccination, please reply to #PLKBA with your immunisation history statement. You are now required to supply this, and your records will be treated with the strictest confidence on a 'need to know' basis. (NOT required if immunisation records are already supplied)
12. On 10 September 2021, Ms Walters sent a further email to the staff of Police Link Command with the subject line "DIR- Action required- Mandatory vaccination for police employees [SEC=OFFICIAL]". That email repeated the above directive prefaced with the following: If you are unsure what is required of you, or you are intending on submitting an exemption request for consideration of the Commissioner's delegate, please speak to your Managers now- don't wait. The very last thing we want to see is people being required to use their own personal leave while we ensure that you meet the Commissioner's mandate requirements.
13. According to the applicant, on 10 September 2021 she approached Mr Cobham and had a conversation with him in which she raised "privacy issues" and stated, "the requirement of my entire immunisation history is excessive… I don't have an issue with any vaccines, but I do care about privacy". Later that day, Mr Cobham sent an email to the applicant which is set out in full at paragraph 14 of my ex tempore decision of 10 March 2022 (at [18]). In that email, Mr Cobham conveyed his understanding that anyone who had not been vaccinated against COVID-19 by the dates specified in the Commissioner's vaccination mandate direction would be "stood down using their own entitlements". It was suggested to the applicant that she could choose to take leave without pay "if this is given as an option".
14. On 11 and 12 September 2021, the applicant worked her final two shifts. She did not return to the workplace after being required to self-isolate due to working with a positive COVID-19 case on her previous three shifts. The applicant then began a pre-planned two week period of annual leave from 17 September to 3 October 2021.
15. On 22 September 2021, the applicant sent an email to Mr Cobham in which she stated: As per the first information collection notice sent out via email on Tuesday 7 September I will provide my immunisation History Statement to the relevant NSWPF Department as soon as practicable. However, in regard to this I will be raising an internal review and seeking legal advice as to why my entire immunisation history statement is relevant to the recent direction. My entire immunisation history is sensitive health information which divulges far more information than that which is relevant to the direction… … To summarise, I have not provided the NSWPF with my Covid 19 vaccination status as per my rights. However, of course I will provide the required document/s to the NSWPF as per the information collection notices sent out on the 7th. This is something I do find an issue with however I will address this via alternative means. As such, the NSWPF may use the correct legal avenues to seek out this information, if such avenues exist. I have been advised that the NSWPF plans to "assume our vaccination status" if it is not provided by the employee. I have been advised that it was you, Andrew (Police Link Tuggerah Centre Manager) who stated this. Can you please advise if this is correct? I am not sure what type of right is being exercised here in assuming the details of someone's personal, and highly sensitive health records but if you could please respond via email with the policy and process here that would be helpful. As per this omission, the NSWPF is willing and threatening to alter my workplace duties based on information they don't have. Further the NSWPF is willing and threatening to assume my personal and sensitive health information and subsequently alter my workplace duties because of this assumption. If this is exercised I do intend to raise internal/external investigations about this conduct as it is inconsistent with NSWPF internal policies, and legislation at both a state and commonwealth level.
16. On 23 September 2021, Mr Cobham responded to the applicant by email which contained the following: Thank you for your email outlining your concerns and questions relating to the NSW Police Force Mandating of Vaccinations. I understand this this can be a difficult time for employees and while I can provide some information, if you are seeking an exemption or deferral based on your concerns and legality of the decision, you will need to submit a report, outlining these points seeking information from Corporate HR through your chain of command as advised. I can clarify: An Information Collection Notice - Mandatory was released by NSWPF on 7/9 along with the Commissioners Direction to Mandate Vaccinations for NSWPF. Evidence of vaccination - you can choose to provide either: * Your vaccination history * Receipt of proof from ie Gosford Hospital (data vaccination) * The Australian Vaccination Certificate - Covid 19 generated for your phone wallet As per the direction of Corporate HR, any person who has submitted a report seeking an exemption/deferral or who has not received a 1st dose vaccination by 30 September will be placed on Rec Leave from 1 October pending a decision on their exemption/deferral. If PoliceLink have no recorded evidence that a staff member has been vaccinated, they will be included in this group and placed on leave. If you seek an exemption or a deferral, then you need to submit a report via your chain of command to Corporate HR. I have attached a report template for your convenience.
17. The applicant was cross-examined about this email from Mr Cobham as follows: Q. Ms Danger the third bullet point on page 27 says "The Australian Vaccination certificate Covid-19 generated for your phone wallet" do you see that? A. Yes. Q. You understood that there was an Australian Vaccination certificate that was generated on the MyGov website that you could put into your virtual wallet on your mobile phone correct? A. Yes I understood I could put that on my phone if I wanted. Q. You obviously have a mobile phone which allows you to put the Australian Vaccination Certificate into your virtual wallet to show anyone who wished to look at it? A. Yes. Q. It was clear to you that Mr Cobham as your immediate supervisor was saying to you that you could provide these alternative forms of evidence to demonstrate that you had been vaccinated correct? … A. Sorry it was clear to me in the context of receiving correspondence from Andrew who had previously said he wasn't sure about the privacy element I could see that he says "An information collection notice mandatory was released 7/9 along with Commissioner's direction, evidence of vaccination you can choose to provide either" and then provides the three options. The information collection notice that he was making reference to however doesn't say that you can choose to provide your immunisation history statement. It straightforwardly requires a staff member to provide that document and I understand that there was an acceptance of other documents however none of those documents were made a requirement and that was the issue that I did have with the direction is that the direction was underpinned and I've written this multiple times, was underpinned by an information collection notice that required the staff member to provide immunisation history statements and in order to follow the direction, the direction has to be within its realms of what it can require of anyone of staff including myself. I raised the issue with - in the first initial contact with Mr Cobham that I said it is excessive to require that document and that was never redacted I guess. That always remains that it was the only required document and it is clear in the information collection notice the official notice sent and I took that as that is what I had to provide. I looked at my statement and I thought that has got all my vaccines from 1996 onwards. There's no - and I tried to say that that is so excessive and it underpins the direction. So I did attempt to raise that in everything so no when I read this from Andrew and he had already sent me emails and had correspondence so he wasn't sure about what ...(not transcribable)... were and he had said that in emails with me which I provided in my affidavit. So when I read this email and he claims that the information collection notice mandatory allows me to choose to provide those. Now that isn't correct according to the information so he didn't provide the right information. However Ms Walters did say that they were expecting other documents but no direction came to the requirement for the immunisation history statement and that is still to this day what I am confused as to how no-one is able to see that. So that's what I'm - yeah that's my response to that sorry. (T 31/01/22 P 38 L 45 - P 39 L 48) … Q. I want to put to you that you understood that the Commissioner had indicated to you in the email from Mr Cobham on 23 September 2021 that you weren't required to provide your full vaccination history and that there were alternative forms of evidence, namely the receipt of proof from a hospital or Australian vaccination certificate which would be sufficient. You understood that? A. No again Mr Cobham ...(not transcribable)... from the evidence said an information collection notice-mandatory was released on 7th of 9th and then he says "you can choose to provide either however that mandatory document that he's making reference to does not say what he has just said. And it still remains as per what Ms Walters said, is that that is the required document. So I understand that there were other documents I could have supplied to the employer however the only one required of me, the one that I was - I said I'm willing to follow any of the requirements I will do that obviously but that was the only requirement and that one requirement was excessive so it's not in that I had the ability to provide them, it's that the police - sorry the respondent did not make those other documents a requirement. For instance if another or an amended information collection notice was released as of 23rd that said "This - another form of vaccination was provided, required" I would have done whatever I had to do to - in order to follow all the requirements of that direction. However the actual matter was that that element was unreasonable, that part of the direction and I sought to make that clear or raise that issue. And it is apparent that Ms Walters understood that as of this date, however there was no correction or no redaction of that at all so it remains that that was the required document. So I'm not sure why having to be - yeah I'm trying to explain again that that is - I think that I've answered that...(not transcribable)... Q. I want to put to you, you also understood that if you provided alternative forms of evidence other than a full vaccination history, which was set out in Mr Cobham's email, that you knew that that would be satisfactory to the Commissioner of Police and no further disciplinary action would be taken against you and you wouldn't be required not to attend work without pay. You understood that didn't you? A. Well that would require me to provide a document that I am not required to give so I would essentially have to do something that I wasn't required to do and so that would be the payoff. I would obviously...(not transcribable)... required of me and I knew that I had to do those things as there was a basis for those things except in this case but if it had been that I was required to provide anything that was relevant I even state in my Godfrey I would provide anything to the respondent if it was legally okay. For instance an information collection notice that says that I'm required to give a document I take that as I am required to give that, there is no - I have to and that is what I was interpreting from reading information collection notice. I did understand that the police didn't want to address that and they wanted to I guess continue that but that was an issue for me as I have - I do value privacy and if I'm required to give a document that is when I will give it. If it's not required of me then I am not required to give it. In that case it could have been required that I give just evidence of my Covid vaccine in another document, that isn't what they directed. So I mean talking about the what ifs, what would have happened, I'm not sure because it depends on the circumstances but the circumstances that did - what did happen was that the respondent required an excessive document. I viewed the direction through that prism that it was excessive and tried to raise that and that was - I guess ignored but that didn't want - it seems as though the respondent just wanted to push that to the side. However, even that Ms Walters understood that it was excessive as of 23 October, the requirement remains now so the direction is still in my view and I don't know if I am you know I'm not the person to say it's...(not transcribable)... but it is, that is an excessive requirement and it does underpin the direction. And it still remains at the police so yeah. (T 31/01/22 P 50 L 36 - P 51 L 44)
18. On 29 September 2021, the applicant submitted her "Godfrey report" to Police Link Command and Corporate HR in which she stated as follows: ISSUE Direction issued by the NSW Police Commissioner to Mandate COVID-19 vaccinations to all members of the NSW Police Force. BACKGROUND I have been required by the Centre Manager at Police Link Command Tuggerah to write a Godfrey report which outlines my position in response to the Direction as stated above. Please note: this is NOT a request for an exemption or deferral. This is also NOT a reflection of my COVID 19 vaccination status, nor does it reflect my willingness or adherence to the Direction stated above. COMMENT In response to the Direction given 07.09.2021 (as stated above); I am willing to provide all information regarding my highly sensitive health information only to the extent the NSWPF is legally able to access it. Please be reminded that in no way am I denying or confirming my position on COVID 19 vaccinations herein, nor am I confirming/denying my vaccination status. However, the NSWPF has given a Direction which inherently relies on me divulging information to the NSWPF that I am not legally required to divulge. Since I am not legally required to provide such information, I will not be coerced or forced into doing so in order to prove my compliance with this Direction. Unlike sworn officers my position at the NSWPF as an unsworn civilian and my duties do not warrant such invasion into my private health records. I value my personal privacy and the legal protections my health records are afforded. I understand that the NSWPF needs to "prove" compliance with this Direction, however such a need does not simply make my right to privacy void. The NSWPF in this Direction has made implicit in it that, myself and my peers as employees have no rights to privacy over our highly sensitive health records. However this is not the case, and until such a time that it is legally required of me, I will not provide any further details about my highly sensitive health records, and I request I am not asked again. I am of course willing and prepared to provide any documents that the NSWPF have legal right to. As stated to the Police Link Command Centre Manager, I will provide my Australian Immunisation History statement as required by the NSWPF. However, 1. A request for the entirety of my immunisation history is not relevant to the COVID 19 vaccination Direction. It divulges far more information than what is necessary for this Direction and is an invasion into my highly sensitive health information. I understand this is required of me (as per the the first information collection notice sent out 07.09.2021), however there has been major mishandling of employee health records since the Direction was given and I have subsequently requested no third parties have access to this record as per my legal rights. 2. An Australian Immunisation Record may/may not include a COVID 19 vaccination dependant on circumstances of when the vaccination was received. Therefore, the statement may not reflect someone's COVID 19 vaccination status and thus cannot be depended on to "prove" compliance with this Direction. 3. Legislation which governs Australian Immunisation Records limit what a employer/third party can do with the information found within it. I question whether the NSWPF will be using the information found within it for the prescribed reasons found in the legislation. Please advise. 4. Please see the email sent to NSWPF staff earlier in 2021 whereby staff were advised that employees are not required to state their vaccination status. This email is consistent with the relevant legislation. 5. Since the Direction was given, there have been a number of instances where the NSWPF and Police Link staff specifically have disregarded the highly sensitive nature of employee health records. On one occasion a team leader shouted in front of peers "oh you haven't had the jab" to which I responded "actually I decline to answer that/I wont be answering that" (as per my legal right). However this is no way for a superior in the NSWPF to handle employee health records. Staff at the Police Link Command have also written on the workplace schedule system (which is accessible to 50+ staff members from team leader rank, and onward) information which explicitly/implicitly refers to my health records/information. This is not consistent with NSWPF internal policies regarding the storing, collecting, handling and use of employee health records. Nor is it consistent with the relevant NSW legislation. Thus, I do not wish to provide any information to this organisation unless it is legally required of me considering the NSWPF has shown some disregard for such information. 6. The second information collection notice sent out 07.09.2021 states it is only requested of me to provide my COVID 19 vaccination statement. As per the reason above, I will not provide this to the NSWPF. 7. I hope the NSWPF can respect my legal rights to privacy and not continue to coerce me to give this information over when it is otherwise legally protected. 8. As I am not requesting an exemption or deferral, I expect to return to my workplace duties from 04.10.2021 as previously planned. 9. Again, I am happy for the NSWPF to obtain my sensitive health records via the legal means available to them. However, I will still exercise my rights to privacy over my health records and decline to answer as to my COVID 19 vaccination status as per these rights. I ask this is respected and expect the NSWPF as my employer understand these rights despite giving a Direction which inherently relies on me divulging this information. I0. If the NSWPF has concerns because my personal health records cannot be accessed and I will not willingly provide the information, I am willing to continue my workplace duties in a work-from-home capacity which is available for my role and duties. As such, I request the Police Link Centre Manager please send me my rostered shifts from 04.10.2021 (and onwards) as previously requested. RECOMMENDATION 1. Respect my legal rights to privacy 2. Not coerce me to provide my sensitive health information which is legally protected and not legally required of me to provide to the NSWPF 3. Access my highly sensitive health information via the legal means the NSWPF has available to them in order to prove compliance with the Direction 4. Provide me my workplace duties and roster as soon as is practicable 5. Ensure employee health records, including mine, are being collected, stored and used appropriately as per NSWPF internal policies.
19. The applicant was cross-examined about paragraph 6 of her Godfrey report and her reference to the "second information collection notice sent out 07.09.2021" as follows: Q. Go to page 29, Ms Danger, and looking at the paragraph which is numbered - go to paragraph 6 which is about two-thirds on the page. It says: "The second information collection notice sent out on 7 September 2021 stated it is only requested of me to provide my COVID-19 vaccination statement. As per reason above, I will not provide this to the New South Wales Police Force." Do you see that? A. Yes. Am I able to-- Q. So-- A. --explain that exact part or-- Q. So I'm just taking you to paragraph 6. You wrote that, didn't you? A. Yes, as it does say again that that was requested and it explicitly states that it wasn't required. Q. And so you say there was a second information collection notice sent out on 7 September 2021. Do you see that? A. Yes. Q. So you understood there were in fact two information collection notices, correct? A. Yes but only one was a mandatory one. Q. And all it said was you were requested to provide that information, and you said you wouldn't provide it to New South Wales Police Force? A. As it was a requested document. It wasn't required of me. I didn't have to provide it, so I wasn't going to. The document which I explicitly said that I would provide were the required documents that the police could have access to. Again, I do believe that there are documents or were documents at the time available to and still throughout and still now, even though that this is still a required document, that could've been alternatively required. However, they didn't require those documents and I don't know exactly why, why one's requested and it's actually the one that would be more reasonable to - I believe it was the certificate, why one would be requested but not required but the more excessive one to be the required document and it didn't really make sense as to why they would require that, and I do have concerns with privacy, and then Ms Walters has said that she was collecting that document also on a need-to-know basis and, considering the diverse variety of information contained in an immunisation history statement, it's far excessive. It's unnecessary. And I did try, again, to raise that 20 days prior to the direction being implemented and then again at 10 days in writing and then again in a Godfrey report on the 29th. So I mean I think I've made it very clear that my - that there was issue with the fact that there is a required document and nothing else is required. I think that - I believe that the way that the perspective from the respondent is that I was - I just didn't want to get vaccinated and therefore I did not want to give information, but that is just not what the issue is. The issue is, and I continue to raise it, is that if you're going to implement a direction of that degree and you're going to embed in it a privacy breach, which that's something not for me to determine but something that could be a privacy breach and is excessive and requires a whole plethora of information, then, you know, I'm going to question that and think that it's - and I would assume that it's okay for an employee to question whether that's okay, given that I've been directed to - required and directed to do that. And so I think that that's formed the basis. The whole perspective that I think came - that the respondent are coming from has formed the basis of the whole treatment perceived throughout all of this and that may have foreshadowed their ability to see that this is - and I can't speak for them and obviously I don't know but that is just how it feels on this end, as that I've gone through this whole process and still can't get that point across, so. Sorry I just am rambling because - but yeah. COMMISSIONER: Mr Seck, just before you proceed, the reference in para 6 to the second information collection notice, is that in the material somewhere, this second notice of 7 September? SECK: I think it might be the reference in the FAQ, Commissioner. So it might be that Ms Danger can confirm what she was referring to but I understood that to be a reference to the information- you will see there's a link to an information collection notice on p 9. I think that's the only reference I could find, Commissioner. Q. But Ms Danger, I was going to ask her to confirm and she might do this now, when she was referring to the second collection notice, if she can perhaps tell us which one she's referring to? A. Yes, sorry, I have a copy of the second information collection notice which says - which I can provide and it says: "If you have received the COVID vaccine, you are requested to provide the New South Wales Police Force with a copy of your immunisation history statement as recorded on the Australian immunisation register. If you are unable to, you are requested to provide the New South Wales Police with a medical contraindication certificate. You have not been directed or required to provide your vaccination information." So that is in regards to - I think that's in regards to the documents that you get when you go to Gosford. I'm not sure exactly what that exact requirement is. It's a voluntary information collection notice. I can also add that and send it through. (T 31/01/22 P 46 L 6 - P 47 L 47)
20. The document which the applicant referred to as the "second information collection notice sent out 07.09.2021" at paragraph 6 of her Godfrey report was not, as suggested by counsel for the respondent, the FAQ document referred to at [31] but, rather, the second information collection notice referred to at [26].
21. On the same day, 29 September 2021, while she was on annual leave, the applicant requested that Mr Cobham send her a form to make "an internal grievance complaint". Mr Cobham's email response was sent to the applicant on that day and the following email exchange then ensued over 29 and 30 September 2021: Mr Cobham: Re: your request for a complaint form. I have been advised there is no form and that you should lodge any concerns / complaints via CAU (Customer Assistance Unit). If you Google NSWPF complaints, you will see where you need to go. Applicant: Just confirming this is the same process for an internal complaint for NSWPF staff? Mr Cobham: Unless you are thinking of the internal grievance policy, yes this is the same process. I don't think the internal grievance policy and forms are the right avenue for your concerns. This is more about interpersonal conflict. Applicant: Can I please see the internal grievance policy so I can make that determination. Mr Cobham: Unfortunately I am not allowed to send these documents outside of the organisation. You need to attend a Police station for access. Access to PoliceLink is no longer possible until a decision is made by HR on your submitted report. I know I may appear to be being difficult. I promise you I am not. I am only following the rules and guidelines of the organisation.
22. In relation to Mr Cobham's statement "I have been advised there is no form and that you should lodge any concerns / complaints via CAU", the applicant subsequently responded to Ms Walters (see paragraphs 6 and 7 at [51]).
23. On 1 October 2021, Gavin Wood APM, Assistant Commissioner, Human Resources, "determined that the (applicant's) request be declined". On the same day, the applicant was advised by Mr Cobham that she would not be permitted to return to the workplace until she had met the requirement to provide evidence of her COVID-19 vaccination status. The applicant was stood down without pay. She continued to be paid the small amount remaining of her accrued annual leave until that was exhausted, after which she was paid nothing up until her last day of employment with the NSWPF, 15 November 2021.
24. On 2 October 2021, the applicant received a phone call from Ms Walters in which she was advised that her "request for an exemption or deferral has been declined". The applicant explained that she had never made such a request and that her "legitimate privacy concerns" related to the requirement to provide her entire immunisation history which was "excessive and irrelevant to the recent direction". Ms Walters followed up this telephone conversation with an email on 2 October 2021 in which she again confirmed that the applicant's "request for an exemption to the Commissioner's COVID 19 vaccination direction has been declined". The applicant was given seven days to have at least one COVID-19 vaccination and provide evidence of that vaccination or provide a medical contraindication certificate.
25. On 6 October 2021, the applicant sent an email to Ms Walters in which she reiterated that she did not request an exemption or deferral with respect to the Commissioner's vaccination mandate direction. She referred to the "internal grievance complaint" that she had raised with Mr Cobham and restated "a number of privacy matters", including the following: 1. Requirement of entire immunisation history statement: This statement divulges far more information than that which is relevant to the Direction and, may/may not provide evidence for a covid 19 vaccine depending on whether the covid 19 vaccine was received before or after 15 February 2021. This statement can be (and is, in my circumstances) protected by law from access by any third party, including employers. I have been stood down due to not divulging this legally protected information.
26. The applicant then referred to the "Request for COVID 19 Vaccination statement", which I take to be a reference to the second information collection notice which is set out at paragraph 13 of my ex tempore decision of 10 March 2022 (at [18]) and referred to above (at [26]). The applicant stated: 2. Request for COVID 19 Vaccination statement: Myself and my colleagues in the NSWPF and Police Link Command Specifically have been misled into thinking it is a REQUIREMENT to divulge this information. As per the information collection notice sent Tuesday 7 September 2021, it is not a requirement.
27. The applicant was cross-examined about this statement as follows: Q. You refer at paragraph 2 "request for Covid-19 vaccination statement" see that? A. Yes. Q. I want to put to you that what you were referring to there was either the statement from the hospital or as you understood it, the Covid-19 vaccination certificate which you could get off the MyGov website. A. I don't - I'm not exactly sure what the vaccination statement is. I think it is what I got when I went to the medical practitioner to get my shot but I don't know exactly what the document is. But it says that it's requested so I'm not sure, what is the question? Q. I'm using your words in your email Ms Danger. What I am putting to you is that when you use the words Covid-19 vaccination statement in the paragraph numbered 2 on page 38 you understood that to mean either the statement from the medical centre where you got your Covid-19 vaccination or the Covid-19 vaccination certificate or other document that you got off the MyGov website. A. Yes. Q. That's what you understood when you wrote that paragraph correct? A. Yes I understood that it was a request for that information. (T 31/01/22 P 54 L 34 - P 55 L 5)
28. It is clear to me that the "Request for COVID 19 Vaccination statement" and "this information", to which the applicant was referring in the passage from her email to Ms Walters set out at [48] above was not "either the statement from the hospital or… the Covid-19 vaccination certificate which you could get off the MyGov website", as was put to her in cross-examination, but, rather, "a copy of your immunisation history statement as recorded on the Australian Immunisation Register" as stated in the second information collection notice set out in part at [26]. The term "vaccination information" is used but not defined in the second information collection notice. However, in the first information collection notice, set out in part at [25], which was issued on the same day as the second information collection notice and the Commissioner's vaccination mandate direction, 7 September 2021, the term "vaccination information" is defined as "a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccination information")". It is apparent that the term "Request for COVID 19 Vaccination statement", as used by the applicant in her email to Ms Walters (at [48]), was a reference by the applicant to the request to provide the "vaccination information" contained in the second information collection notice (at [26]).
29. The applicant's email of 6 October 2021 to Ms Walters continued as follows: 3. Storing of personal and health information on Team Leader Roster (visible for staff of TL rank and above): Comments on the roster are implicit of employee vaccination status due to reference to Commissioners Direction. I would like to raise and investigate potentially concerning mismanagement of storage of employee health records, and questionable reasoning for why these records are being referred to in a roster which can be accessed by numerous staff members. Mismanagement is also evident whereby an unauthorised employee gained access to this roster, viewing the comments held within. 4. Use of employee private health records in an informal manner by management staff at Police Link: Employee health matters are and have been discussed and mentioned in front of peers/colleagues with complete disregard to privacy. Multiple TL's at Police Link Command having exhibited these behaviours, and a report for each instance can be made upon request (including grievances from myself and multiple others at Police Link Command - concerning multiple TL's not just the TL of concern who I have already made you aware of). 5. Misrepresentation: The Commissioners Direction states at point (2) that "IF REQUIRED by a MANAGER, SUPERVISOR, or COMMANDER" vaccination evidence is required. It is explicit in that gives the ultimate duty of requesting "vaccination evidence" to prescribed persons. I have not been directly required to provide said evidence to a prescribed person. However, Centre Manager Andrew Cobham stated 6 days after being stood down that a prior email which referred to his clarification of an information collection notice was his request. This is a complicated matter I will need to discuss further and seek clarification from you. 6. Deferral of this complaint on multiple occasions to the Customer Assistance Unit by both the Centre Manager and Police Link Commander: I am an employee, not a customer and my complaint is solely work related, and I have been restricted from accessing internal NSWPF policies and forms from my workplace in order to start this complaint earlier. In restricting my access to workplace policies, forms and guidelines I have had to resort to my relevant workplace award which identifies the process this complaint need take. This avoidance is not indicative of how the award requires NSWPF and Police Link Command Management to handle internal grievances (despite raising this grievance on multiple occasions prior to now). 7. Lack of genuine help made available by Police Link Command despite requests for it: As mentioned in point (6), upon request for NSWPF policies and forms I was denied access to them because I have been stood down. I asked for the internal grievances process, which I was advised I was not allowed to be sent. Only to later find the process clearly outlined in the award. As well, instead of aiding in the complaints process, Police Link staff have deferred my comments onward to NSWPF departments who don't handle my particular concerns. I also received no response to my individual report which deals solely in privacy concerns. 8. Upon enquiring into the handling of private health records on our Saturday Morning phone call, and having direct knowledge as well as evidence of multiple privacy breaches, I was met with resistance and denial rather than genuine concerns for such a breach. 9. Lack of knowledge as to the particulars in the Covid 19 vaccination Direction by management: As mentioned on our call on Saturday morning I stated that at point (2) the Direction refers the duty of collecting vaccination evidence to a manager, supervisor or commander. Upon raising this, I was told, "no its in the Direction". Upon review of the direction it is clear what point (2) states. As such, those that are required to enforce the mandate, and discuss the sensitive nature of it, are not fully aware of the exact requests the mandate stipulates. This results in myself and other employees being misled as to our requirements under this mandate, confusion and misrepresentations. This is not an exhaustive list but generally details the grievances I am raising. After working through floods, fires, and the pandemic since it started I am truly saddened and anxiety ridden by the treatment we have received throughout this whole process. I have written numerous emails and reports all in my own time, some of which have taken hours to write and look into. All of these reports are stating the exact same thing and not once have I received a clear and comprehensive response to the concerns I have personally raised. This has caused ongoing stress for myself and my young family considering we rely on my employment to stay afloat. I am sure you are busy dealing with business needs and the needs of other employees, yet it is still expected that management are equipped to deal with the variety of responses they may get following such a Direction, especially given I am now stood down without answers. *** Again, to reiterate and ensure you are aware, I am not here disclosing my vaccination status or my willingness or compliance with this Direction. However I am and will continue to exercise my rights to privacy that my health records are afforded **** Thank you kindly and I hope to resolve this matter as efficiently and cooperatively as possible.
30. Ms Walters forwarded the applicant's complaint to the Administrative Officers Conduct Unit for "assessment of the matters raised".
31. On 8 October 2021, the applicant sent the following correspondence to the Commander of Police Link Command: Re: Seven day notice from the Commander issued on Saturday October 2 2021. I acknowledge that I have received a reply to the supplementary report I supplied 29 September 2021 regarding privacy. In response to this report, I received seven days from October 2 2021 to "comply with the Commissioner's direction" and a warning if I do not comply the following action will be taken. (a) Not be permitted to perform duties; (b) Be required to take a form of leave; (c) Be subject to disciplinary action. I did not, however, receive a response to the supplied report on privacy. I received a response to an exemption or deferral to the Commissioners Direction despite never stating that I am unwilling to, or have not complied with this Direction. The report I submitted focuses on the NSWPF's request for my Australian lmmunisation History Statement and other health records and the threat and act of standing me down without pay if they are not supplied. After seeking legal advice on the response received from the NSWPF and the change to my duties I have raised an internal grievance complaint as per the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 which governs my employment contract with the NSWPF. The lawfulness of the decision to dismiss me of my duties and the supporting reasoning is now in question. I believe I have a legal right to have the reason I have been stood down tested via the appropriate means, and later the right to due process under the law. I request the NSW police acknowledge the filing of an internal grievance complaint, and to defer from any further disciplinary action until the matter has been finalised internally as per s. 9.11 of the appropriate award, and subsequently before the Industrial Relations Commission. If the reason for my change in duties, and the decision to stand me down without pay is found to be lawful I will remain open to disclosing my highly sensitive health records once it has been ruled lawful via the relevant means and jurisdiction. I would like to again note that I do not intend to, and have not disobeyed the Commissioner's direction. I would like to engage with further consultation with the New South Wales Police Force in relation to the internal grievance complaint regarding privacy and the Direction which supports the NSWPF decision to stand me down without pay. I hope to work toward mediating a favourable outcome for both parties involved, as required by and detailed in s.9 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009. I respectfully request that my lawful rights be respected and allow me the opportunity to come to a lawful resolution relating to my rights at law to privacy and the Commissioner's direction for COVJD-19 vaccination which forms the basis for my change in duties.
32. Also, on 8 October 2021, Ms Walters referred the applicant's non-compliance with the "Commissioners Mandatory Vaccination Direction" to the Administrative Officers Conduct Unit.
33. On 13 October 2021, the applicant emailed Ms Walters for an update on her internal grievance. On 14 October 2021, Ms Walters replied to the applicant and advised her that her email of the previous day had been referred to the Office of the General Counsel and Professional Standards Command.
34. On 14 October 2021, the applicant lodged a "Privacy Complaint: Internal Review Application Form" with the Information and Privacy Commission NSW for review of the conduct of the NSWPF under s 21 of the Health Records and Information Privacy Act 2002.
35. On 14 October 2021, Mr Cobham emailed the applicant to check on her welfare. On 15 October 2021, the applicant responded to Mr Cobham by email which included the following: Thank you for checking in. Unfortunately, it has been hard for my small family at this time. Being put on leave on my own entitlements with uncertainty around my employment and future financial situation is very distressing. In fact I've had to seek out help for the first time in my adult life due to the situation. The ongoing ambiguity around my situation specifically, and those of my fellow employees, and the questionable choice to stand me down without pay is concerning behaviour from an employer that would be expected of more. I ask you please keep me updated with all developments regarding my employment as soon as is practicable. As you know, I have been stood down without answers for 15 days, using my own leave, which is soon to run out. The threat of dismissal, and the other ambiguous disciplinary measures the NSWPF have advised me of is causing a lot of unnecessary feelings of worry and fear of the future. The stress caused by not knowing my future financial and professional situation is actually unbearable. It is also having a major impact on my university studies which I am now failing due to having to focus on this situation, writing continuous reports, seeking legal and psychological assistance and ultimately living in a state of limbo as to what I should do in regard to employment.
36. On 18 October 2021, the applicant tendered a letter of resignation (see paragraph 16 at [18]). In my ex tempore decision of 10 March 2022, I determined that the real and effective initiator of the termination of the applicant's employment was the conduct of the respondent. Put another way, the applicant had been constructively dismissed by the respondent.
37. The question remained, however, as to whether the dismissal of the applicant was unfair. I have determined that it was in the sense that her dismissal was harsh, unreasonable and unjust for the reasons set out below.
38. The conflicting information collection notices which were issued on 7 September 2021 were likely to cause confusion in the minds of the recipients (see paragraphs 12-13 at [18] and [25]-[26]). With respect to the first information collection notice, counsel for the respondent put the following submission: So Commissioner this is the first time one sees reference to the information collection notice and you will recall that the information collection notice had two forms and they were provided both on 7 September 2021. The first information collection notice was an annexure to Ms Danger's first affidavit… It's headed "Collection notice one" in handwriting and this is the one which says "You are required to provide the NSW Police Force with a copy of your immunisation history statement as recorded in the Australian Immunisation register or a copy of the medical contraindication certificate'. The purpose of the collection is set out and if you go to the third para it says "You must provide your vaccination information if required to do so by your manager, supervisor or commander". So it doesn't say this time just the immunisation history statement but it says "You must provide your vaccination information". So the initial requirement is to provide the immunisation history statement but then it also says "you must also provide your vaccination information if required to do so". In my submission the way you read that is you're required to provide the statement but you may also be required to provide vaccination information in more general terms if required by the manager, supervisor or commander. That picks up the language which is used in the direction which is made by the Commissioner of Police on 7 September 2021 and then it sets out the consequences of failing to do so. (T 21/02/22, P 5 L 19-41)
39. This is a misreading of the document (at [25]). When counsel read the first paragraph of the document, he omitted the last two words in brackets. The complete first paragraph of the first information collection notice is set out below: You are required to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccination information").
40. Clearly, the term "vaccination information" where it appears throughout the document is to be read as referring to "your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate" and not to "vaccination information in more general terms if required by the manager, supervisor or commander" as was submitted by counsel. The term "vaccination information" is defined very specifically in the document and cannot, on any fair reading of the document, be taken as referring to any alternative form of "vaccination information" such as a vaccine certificate which is available from the Australian Government to people who have received two doses of a COVID-19 vaccination.
41. The requirement to produce a copy of an employee's immunisation history statement as recorded on the Australian Immunisation Register, which records a person's entire immunisation history going back years, is, in the words of the applicant, "excessive". It goes well beyond what was necessary to enforce the Commissioner's vaccination mandate direction which was also issued on 7 September 2021 and constitutes an unwarranted intrusion into an employee's privacy. The applicant was well within her rights to object to the production of this "vaccination information". I note also that the first information collection notice requires the provision of the employee's "vaccination information" if required to do so by the employee's manager, supervisor or Commander, or face the risk of "management action". The first information collection notice does not authorise a manager, supervisor or Commander to require the provision of any alternative form of evidence of vaccination in lieu of the "vaccination information" as defined in the notice itself.
42. The second information collection notice (at [26]), which was also issued on 7 September 2021, completely contradicted the first information collection notice by stating that provision of a copy of an employee's immunisation history statement as recorded on the Australian Immunisation Register was "requested", not "directed or required". In addition, there was no reference to possible "management action" for failing to comply with this request. As stated above at [29]-[30], no satisfactory explanation was provided by the respondent as to how or why these two contradictory notices were issued on the same day but they clearly created confusion in the mind of the applicant as was evident in some of the answers she gave to questions she was asked in cross-examination (see [24], [32], [39], [41] and [49]).
43. The second information collection notice is couched in similar language as the document set out in part at [23] which was issued to employees in March 2021, well before the Commissioner's vaccination mandate direction was issued on 7 September 2021. It is entirely unclear as to why this document was effectively re-issued as the second information collection notice on the same day as the Commissioner's vaccination mandate direction and the first information collection notice were issued. I note that the second information collection notice was not amongst the materials relied upon by the respondent in the proceedings but was provided to the Commission by the applicant herself while she was under cross-examination on 31 January 2022 (T 31/01/22 P 47 L 20 - P 49 L 26).
44. Both the first and second information collection notices clearly state that employees are required or requested to provide the NSWPF with a copy of their immunisation history statement as recorded on the Australian Immunisation Register.
45. The requirement for employees to provide their "immunisation history statement" was reinforced by Ms Walters' email to staff of Police Link Command of 7 September 2021, part of which is reproduced at [33], and the reference to the "Australian Immunisation Register (AIR)" in the FAQ document, part of which is reproduced at [31].
46. Having had the advantage of observing the applicant giving her evidence, I formed the opinion that she is an intelligent and articulate person who gave truthful and forthright answers to the questions that were put to her but did, on occasions, become confused, which is completely understandable in the circumstances of confusion created entirely by the respondent.
47. The applicant was entitled to resist the requirement/request to provide the NSWPF with her entire immunisation history and, right up until the day she tendered her letter of resignation, 18 October 2021, that completely unnecessary and intrusive requirement/request had not been authoritatively rescinded or revoked.
48. In hindsight, it may well have been prudent for the applicant to have received a first dose of COVID-19 vaccination prior to the 30 September 2021 deadline while she continued to prosecute her grievance over privacy concerns. However, it is understandable that she did not do this given that, even if she had received a first dose before the deadline, she would still have been stood down without pay until she provided the required/requested "vaccination information" which was the very issue at the heart of her grievance which remained unresolved right up until the termination of her employment.
49. The response to the applicant's grievance by the respondent was less than satisfactory. Her repeated complaints about legitimate privacy concerns were treated as requests for an exemption or deferral from the requirement to become vaccinated against COVID-19, which they were clearly not.
50. The applicant first raised her concerns over "privacy issues" with her manager, Mr Cobham, on 10 September 2021. The response the applicant received from Mr Cobham simply set out his understanding that anyone who had not been vaccinated by the specified dates would be stood down using their own entitlements until they became vaccinated and set out what the applicant needed to do if she wished to state her case for "either deferment or exemption of vaccination", which she did not (paragraph 14 at [18]).
51. The applicant's email to Mr Cobham of 22 September 2021 made specific reference to "the first information collection notice sent out via email on Tuesday 7 September" and stated that "I will be raising an internal review and seeking legal advice as to why my entire immunisation History Statement is relevant to the recent direction" (at [37]). In his reply email of 23 September 2021, Mr Cobham referred to the "Information Collection Notice - Mandatory" and the "Commissioners Direction to Mandate Vaccinations for NSWPF". He then set out three alternatives the applicant could choose to provide as evidence of vaccination (at [38]). The problem for the applicant with this advice was that the first information collection notice did not say that. The only "vaccination information" that was required to be provided by the applicant was her entire immunisation history going back to 1996. The applicant was entitled to hold this view as she explained under cross-examination (at [39]).
52. It was submitted on behalf of the respondent that the applicant "conceded under cross-examination that she understood that had she provided vaccination evidence in those lesser forms identified, they would have been accepted by the NSWPF" (paragraph 33 at [22]). The footnote reference given in the respondent's written submissions (but omitted at [22]) was to the transcript of 31 January 2022 of the cross-examination of the applicant, at page 43 line 30. Below is set out a passage from the transcript of 31 January 2022 at page 43 lines 8-31, which contains no such concession by the applicant: Q. And am I right in understanding that if the information collection notice had said that alternative forms of evidence could've been provided demonstrating that you'd been vaccinated against COVID-19, then you would've provided such evidence? A. If it stated something that was reasonable or had a reasonable evidence to be provided, which is just COVID vaccines, as I have said in my Godfrey reports, I would've been more than willing to provide anything that I needed to provide as far as it is reasonable to do, yeah-- Q. And when you say as - apologies. Continue, Ms Danger? I apologise for interrupting. A. No, I'm just trying to, you know, we're talking sort of in like a realm of "what if" but the fact is that it was required and my entire - everything that I formed about this direction was based on the fact that there was a really unreasonable excessive requirement which underpinned it. And so everything that I, you know, I did view everything within the realm of, well, this direction is quite - its privacy element, it's quite excessive, and that's what I continue to try and raise on multiple occasions and in addition to saying I don't have any concerns with any COVID vaccines. I understand the need for them, except that privacy is an issue for me and I do consider privacy, you know, something that should be considered appropriately by employers and it appeared with this that that wasn't being considered and Ms Walters sort of spoke to that when she said she had later corrected that because she must've realised that that was excessive but that wasn't said to me at all. So if that makes sense. (T 31/01/22 P 43 L 8-31)
53. It was further submitted on behalf of the respondent that the applicant "confirmed in writing on 6 October 2021 that she was aware she could provide her COVID-10 Vaccination Certificate to satisfy the vaccination evidence requirement, but expressly chose not to" (paragraph 34 at [22]). The footnote reference given in the respondent's written submissions (but omitted at [22]) was to the transcript of 31 January 2022 of the cross-examination of the applicant, at page 38 lines 30-40. In the applicant's correspondence to Ms Walters of 6 October 2021 she confirmed nothing of the sort (at [47]-[51]). Further, the transcript reference cited by the respondent, which is included in the extract set out below, similarly contains no such confirmation but, rather, the opposite: Q. Did you get evidence from that medical centre of your first dose of the Covid-19 vaccination? A. Yes and it came in the form of an immunisation history printout that included...(not transcribable)... … A. Yes I received both my vaccines from the same medical centre where I got a printout from the practice nurse who gave the vaccine of my immunisation history statement as it was on their record to show that first vaccine and then again the second vaccine which included vaccines and immunisations from last year when I had also attended that same medical centre for shots due to whooping cough and things like that because I had a baby and also flu vaccines and things like that. So I did have that printout but it wasn't the required document again so I wasn't thinking about - and that was the required document as well I was looking at because it was officially required of me. The document I received was I think the medical centre's own version of that but only the vaccines that you had had at their medical centre. Yes so that's where I got my vaccine. Q. There was nothing to prevent you if you had concerns crossing out the vaccinations which were not related to Covid-19 was there? A. I wasn't thinking on what I could have provided except for the required document. As that was the official document again that I had received and that document - sorry that information request explicitly said it has to be as it appears on the immunisation register and so no it didn't cross my mind that I should just cross it out as that wasn't what was required of me. (T 31/01/22 P 38 L 11-44)
54. It was also submitted on behalf of the respondent that, under cross-examination, the applicant "conceded the same multiple times, and suggested that she had 'not thought about' providing alternative vaccination evidence" (paragraph 35 at [22]). The footnote reference given in the respondent's written submissions (but omitted at [22]) was to the transcript of 31 January 2022 of the cross-examination of the applicant, at page 39 lines 20-25 which is within the passage set out below (and at [39]) and which, again, contains no such concession: A. Sorry it was clear to me in the context of receiving correspondence from Andrew who had previously said he wasn't sure about the privacy element I could see that he says "An information collection notice mandatory was released 7/9 along with Commissioner's direction, evidence of vaccination you can choose to provide either" and then provides the three options. The information collection notice that he was making reference to however doesn't say that you can choose to provide your immunisation history statement. It straightforwardly requires a staff member to provide that document and I understand that there was an acceptance of other documents however none of those documents were made a requirement and that was the issue that I did have with the direction is that the direction was underpinned and I've written this multiple times, was underpinned by an information collection notice that required the staff member to provide immunisation history statements and in order to follow the direction, the direction has to be within its realms of what it can require of anyone of staff including myself. (T 31/01/22 P 39 L 17-31)
55. The response the applicant received to her Godfrey report of 29 September 2021 (at [40]), in which she set out her privacy concerns and raised, at paragraph 6, the second information collection notice, was inadequate. It was simply "determined that the request be declined" (at [45]). The evidence discloses that the applicant's raising of her privacy concerns continued to be treated as a "request for an exemption or deferral", which it was not (at [45]-[46]). The applicant's repeated raising of the second information collection notice remained completely unaddressed (at [48]-[50]).
56. The applicant's attempts to raise an internal grievance complaint when she was away from the workplace were initially fobbed off by Mr Cobham (at [43]-[44]). The applicant's written complaint to Ms Walters of 6 October 2021, which essentially restated issues which the applicant had been raising with her managers over the preceding four weeks, went unanswered apart from Ms Walters forwarding it along to another unit within the NSWPF ([47]-[51]).
57. No adequate response had been received by the applicant to the raising of those concerns by the time she tendered her letter of resignation on 18 October 2021. This failure on the part of the respondent to adequately address the legitimate concerns which the applicant had been raising over an extended period of time was unfair to the applicant and contributed to the breakdown of the relationship of trust and confidence between the applicant and the respondent. I note that the applicant's grievances were not dealt with by the respondent within the timeframes specified in Clause 9 - Grievance and Dispute Settling Procedures in the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009, which covered the applicant's employment.
58. The applicant was stood down without pay from 1 October 2021. Throughout her oral submissions to the Commission on 31 March 2022, the applicant referred to herself as having been suspended without pay. I agree with this characterisation of what occurred.
59. Suspension of an employee from duty is a disciplinary measure which is available to be used in the public sector pending a decision in relation to misconduct, criminal charge or corrupt conduct (s 70 Government Sector Employment Act 2013). However, pursuant to Premier's Memorandum M1994-35 - Suspension of Public Employees from Duty, suspension from duty without pay should only occur in "exceptional circumstances" such as "where an employee has been remanded in custody, or has admitted to behaviour that under the circumstances renders the employee unfit to continue in paid employment with the agency".
60. It is accepted that the applicant was not suspended from duty pursuant to s 70 of the Government Sector Employment Act. Precisely what the basis of power was for the respondent to effectively suspend the applicant without pay was never properly explained. Nevertheless, the treatment of the applicant, in circumstances where she had legitimately challenged the respondent's requirement/request to provide her entire immunisation history, which was clearly overreach by the respondent given the purpose of the Commissioner's vaccination mandate direction, as if she had been charged with a serious criminal offence and remanded in custody, was inherently unfair.

Remedy

1. The applicant is not seeking reinstatement or re-employment. The remedy sought by the applicant is "24 weeks compensation, and for the mark "unsuitable for re-employment" to be completely removed from the Applicant's employment record at the NSW Police Force" (paragraph 25 at [21]).
2. From the outset of these proceedings, the applicant has expressed concern about the notation placed on her Form P1050 (at [3]). The applicant stated: …I do not want to be regarded as unsuitable for re-employment when it reflects badly on my character which isn't true. (T 21/02/22 P 31 L 29-30)
3. During the proceedings on 21 February 2022, the applicant confirmed that she was double vaccinated against COVID-19, having received her first dose on 19 November 2021 and her second dose on 10 December 2022. The applicant forwarded documentary evidence of this to the Commission (T 21/02/22 P 38 L 1 - P 39 L 1).
4. Counsel for the respondent, in relation to Mr Cobham's notation on the applicant's Form P1050 stated: …if she was to supply evidence of it and I assume the evidence she can provide is more limited, as required by Mr Cobham in his email of 23 September, then it will no longer say, "No". I think perhaps the issue which has been raised by Ms Danger is one that doesn't arise here because if she provides that evidence of vaccination, if she tells us she's vaccinated and we're prepared to accept her COVID-19 vaccination form, that it may be changed based on what is indicated by Mr Cobham in his email. (T 21/02/22 P 37 L 11-17)
5. I dealt with the matter as follows: …Mr Seck, what I'm going to ask you to do and this is probably a little unorthodox, but I want confirmation from your client that what records are kept on Ms Danger's personnel file will indicate that she is not regarded as unsuitable for future employment, in particular that box on the document that Mr Cobham had referred to, will not be marked as "Unsuitable".
6. In the written submissions filed on 30 March 2022, the respondent submitted "there is no power available under section 89 of the IR Act to compel the Commissioner of Police to amend an internal business record, as this does not fit into the scheme of reinstatement, re-employment and compensation contemplated by the IR Act in response to unfair dismissal applications" (paragraphs 45-47 at [22]). This submission is, no doubt, a correct statement of the law. However, it is open to the Commission, in an unfair dismissal matter such as the present proceeding, to take into account the conduct of the respondent, and the fairness or lack thereof of that conduct, when considering the question of remedy and, in particular, the quantum of monetary compensation that might be ordered.
7. During the hearing on 31 March 2022 the following exchanges occurred: SECK: …Can I deal with the second point first? It's absolutely misconceived. If you go to exhibit A, Commissioner, and I'll come back to where it's recorded in the email as well, this is the form that's been completed by Mr Cobham as the immediate supervisor of Ms Danger. And you'll see on p 2 there are additional comments and I think these are the comments that Ms Danger is concerned about. It says, "As at the date 19 October", so it's linked to a particular point in time, "Moana is not suitable for employment". So, we're not saying "Forever", we're just saying, "As at this date". And then there is qualification, "as she has not provided evidence of COVID-19 vaccination per Commissioner's directive." Now, the trick is she hadn't provided evidence and as at that date, 19 October, she wasn't vaccinated. "If this were to change, I would consider Moana suitable for employment.' It has changed. She's now provided evidence, we've put it on her file to say, "Here's the evidence" and she's now vaccinated, according to her. So, when you look at the additional comments in context and properly and fairly, it was a time sensitive or a point in time comment and it notes that there might be changes in circumstances and now that there have been circumstances that have changed, she's now deemed suitable for her employment. COMMISSIONER: But how would anyone reading this know that? SECK: Because, as we pointed out, she's given us a copy of her certificate and we've put it on the system. COMMISSIONER: But that requires someone to read this and then go looking for any evidence of change. SECK: It would be very easy, Commissioner, as we said-- COMMISSIONER: Well, would it? I don't know that. I don't know how thick her file is, I don't know if it's on a computer or - what troubles me and I'll be quite frank about this, if you now know that the situation has changed, it's not an "if" but she has, why do you need this at all? Get rid of it and tick the "Yes". SECK: The problem is - and this is what I'm instructed - you can't change the past. The document is a document, there are State record obligations under the State Records Act for us to maintain those records so long as they exist. So, the fact is this record was not inaccurate at the time, in fact was accurate. It's been completed, it's on a system. We can't rewrite history by removing a document which is on the system because it would be in breach of the law. COMMISSIONER: So you say you can't amend that? SECK: What we can do is supplement it, Commissioner. COMMISSIONER: Well, why can't you do that? Why can't you add under this- SECK: We're willing to do that. COMMISSIONER: --"And by the way, it has now changed and above the 'No' tick, the 'Yes' should be ticked, as of", whatever date, "November"? SECK: I think what we've indicated, Commissioner, is that we are happy to put a supplementary document there to say she's provided the evidence, so it's no longer an issue. So, we can work with Ms Danger to try and come up with the right form of words on that issue. We can't change what's there. COMMISSIONER: You said you can supplement it. SECK: We can supplement it. Sorry, Commissioner. And can I say my instructions are that - and we can verify, we can put on evidence of this - we have told Ms Danger we are offering to correct the record by putting a further document which says she's now provided the evidence and it's no longer the case that she's unsuitable for re-employment. So we've sought to address that issue. And so what we can do, Commissioner, to address your concern, we can put a note on this form and I can put this on the record to allay any concerns Ms Danger may have and to address what you've just raised with me, that she has now provided that evidence. COMMISSIONER: So you can change this form? SECK: No, we'll just - I'm being told that's what we can do. No? Oh sorry, I've been told there's a note on top of the form which means there's an extra page on top of the form. COMMISSIONER: What would it say? SECK: It says that she's now provided the evidence that she is vaccinated as of this date. No, sorry, I'm being told something else now, sorry. So I'll get the right words we're prepared to put on the record, just so I can read it out, Commissioner and I apologise, I keep on getting it wrong. COMMISSIONER: Are these things kept in paper, in a file as I understand it, or are they all on computer? SECK: Electronic. COMMISSIONER: So, if someone goes to this form and reads those comments-- SECK: There'll be another document form which says-- COMMISSIONER: Do they have to go looking for that? SECK: I'm not sure. COMMISSIONER: Or will it be a direct link or-- SECK: I think it will be linked on the system. It won't be sitting by itself, there'll be a link to another document which will-- COMMISSIONER: Well, I probably sound a bit nostalgic for the days before we even had computers, but it would be much easier if you just whited this out and put her current state of play. SECK: I'm told it can't be done because it's a point in time document but we will correct it. You can see at the bottom, just to answer your question, on p 2, Commissioner, perhaps this answers your question in part, the completed form should be scanned onto the ePersonnel file. So, it does seem that it's scanned onto a personnel file which is held in Ms Danger's name in the ePersonnel system. And I'll get the wording shortly as to what we can put on. I'm told it can't be changed but we can put a note on it to say-- I apologise, Commissioner. COMMISSIONER: You're right. SECK: I have instructions that Man Walters, that is Kirsty Walters, will put a note on this form, that is the form P1050, so there'll be a note on the form. I don't know how that happens electronically but those are my instructions and it will say these words, "As at 19 November 2021, Ms Danger was vaccinated and provided evidence on 21 February 2022 and is suitable for re-employment". COMMISSIONER: And will those words appear at the place just below the words I've been referring to? Is that physically possible? Because if they're somewhere else, there's no guarantee they're going to be read when these words are read. SECK: I don't know how that's done electronically, Commissioner, but I can ask that question. I've been told consistently that you can't alter a document, you can simply put a note on it. Can I move on, Commissioner? I don't want to waste your time and I think we-- COMMISSIONER: All right. Well, I'd like that one cleared up. SECK: Absolutely. (T 31/03/22 P 57 L 5 - P 59 - L 45)
8. I have extracted at some length the above passage from the transcript because the notation on the applicant's Form P1050 indicating that she was not considered suitable for re-employment has been an issue of concern for the applicant from the outset of these proceedings. Whilst the respondent has quite correctly submitted that this Commission has no power to compel the respondent to amend the applicant's Form P1050, it was a matter which I was prepared to take into account in assessing an appropriate amount of monetary compensation to order in favour of the applicant.
9. This matter could have been easily defused as an issue of concern if the suitability for re-employment section on the applicant's Form P1050 had been marked "YES" with an additional comment "Subject to provision of acceptable evidence of vaccination". Nevertheless, I accept that the respondent has committed on the record to take what steps it can to ameliorate the concerns of the applicant around this issue and should be given credit for that.
10. The respondent claims that the applicant has not mitigated her losses arising from the termination of her employment or sought alternative employment (paragraph 43 at [22]). The applicant has provided her reasons for this (paragraph 54 at [21]).
11. I regard the proposition that the applicant should have sought out alternative employment as too simplistic in the circumstances of this case.
12. The applicant commenced her career with the NSWPF in 2018 in the full-time role of Customer Service Representative. In May 2020, the applicant commenced maternity leave. The applicant returned to work on a maternity leave arrangement on reduced hours which were set to increase every six months "to account for her home and personal duties following having her child". At the time of the termination of her employment, the applicant was working three 5 hour shifts per week and being paid accordingly. But for the termination of her employment, it would have been expected that the applicant would have eventually returned to full-time employment. The prospect of this was taken away from her by the conduct of her employer which is dealt with extensively above and which, most clearly, "could've been done better". Comparable employment opportunities are unlikely to be readily available to the applicant.
13. The jurisdictional limit on orders for compensation in unfair dismissal matters is "the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed" (ss 89(5) of the Act). The facts of this case do not warrant an order for compensation at or near the upper end of the scale. Nor do they warrant, as was submitted by the respondent, an order for compensation at the lower end of the scale.
14. In determining the appropriate amount of compensation to be ordered to be paid to the applicant in this case, I have based the calculation on a week's pay being for 15 hours work, but have taken into account the potential loss to the applicant of a full-time career in her chosen field. I have also taken into account, to the respondent's credit, the undertaking that has been given to take steps to ameliorate the potential damage that has been done to the applicant's professional reputation by marking her as unsuitable for re-employment. In all of the circumstances of this case and in the exercise my discretion, I determine that the applicant should be compensated for her unfair dismissal in an amount equivalent to 14 weeks' pay at the weekly rate of pay that she was entitled to receive at the time of the termination of her employment, had she not been stood down without pay.

Order

1. Pursuant to s 89(5) of the Industrial Relations Act 1996 the respondent, the Commissioner of Police, is ordered to pay to the applicant, Moana Danger, within fourteen days of the date of this decision, compensation in an amount equivalent to fourteen weeks' pay at the rate of pay that the applicant was entitled to receive at the time of the termination of her employment had she not been stood down without pay. John Murphy Commissioner

Amendments 08 June 2022 - Amendment to cover page. 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: 08 June 2022