Danger v Commissioner of Police

Determination

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.
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.
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
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
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".
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.
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".
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)
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.
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)
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)
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.
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".
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.
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.
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.
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)
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.
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)
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].
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.
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]).
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.
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.
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.
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.
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)
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]).
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.
Ms Walters forwarded the applicant's complaint to the Administrative Officers Conduct Unit for "assessment of the matters raised".
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.
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.
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.
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.
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.
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.
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.
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)
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").
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.
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.
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]).
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).
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.
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].
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.
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.
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.
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.
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]).
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]).
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)
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)
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)
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]).
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]).
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.
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.
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".
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.

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Judgment (7 paragraphs)

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