Fair Work Act 2009

s.394 - Unfair dismissal

Electricity Networks Corporation T/A Western Power

Application for an unfair dismissal remedy Application for an unfair dismissal remedy

[1] On 31 January 2022, Mr Dinith Jayasundera (Mr Jayasundera) and Mr Matthew Jenkins (Mr Jenkins) (together - the Applicants) each made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that they had been unfairly dismissed from their employment (the applications). The Applicants' previous employer is Electricity Networks Corporation T/A Western Power (the Respondent).

[2] The applications have been subject to several procedural hearings before the Commission; this decision concerns the merit of the Applicants' claims. The Applicants seek reinstatement or, in the alternative, compensation.

• [3] The history of the applications is, in part, outlined in my previous decision, issued on 27 June 2022, which concerned an application for directions on procedure (the Procedural Decision):[1]

"On 31 January 2022, sixteen individuals (the Applicants) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for unfair dismissal remedies (the Applications). The Applicants allege they were unfairly dismissed by Electricity Networks Corporation t/a Western Power (the Respondent). The Applicants claim to have been dismissed by the Respondent on 10 January 2022.

The Applicants all have the same representative, Hotchkin Hanly Lawyers. Due to the Applications being lodged against the same Respondent, all consisting of similar facts, and all the Applicants being represented by the same representative, it was requested that the matters would be heard jointly at this stage.

The matter was originally allocated to the former Deputy President Mansini. The Applications were then reallocated to my Chambers on 10 May 2022, after Her Honour's departure to the Federal Court.

On 5 May 2022, the Applicant's representative filed a Form F48, application for directions on procedure (the Directions Application), which requested:

• a stay of the Applications pending determination of the Supreme Court of Western Australia civil matter 1194/2022 - Jayasundera v Andrew Robertson (Chief Health Officer), or further order of the Commission.

Mr Dinith Jaysundera (Mr Jaysundera), who is one of the Applicants, is currently challenging the validity of the Critical Infrastructure Worker (Restrictions on Access) Directions (Critical Infrastructure Directions**)** in the Supreme Court of Western Australia (the Jayasundera Proceedings). The Jayasundera Proceedings have been adjourned pending the outcome of other similar proceedings.

On 11 May 2022, the parties were sent directions in relation to the Directions Application. The Directions Application was consequently subject to a Hearing before the Commission on 9 June 2022.

This decision concerns the Directions Application and whether the Applications should be stayed pending the outcome of the Jayasundera Proceedings. In short, I have determined it is not appropriate, in the circumstances, to adjourn the matter pending the outcome of the Jayasundera Proceedings."

[4] On 13 July 2022, the Applicants lodged an appeal against the Procedural Decision.

• [5] Alongside the appeal, the Applicants requested that the Directions in the original proceedings be stayed pending the outcome of the appeal. This request was refused by Deputy President Beaumont on 28 July 2022.[2]

• [6] On 18 August 2022, permission to appeal the Procedural Decision was refused.[3]

[7] The applications were subject to a Case Management Conference on 30 June 2022. In the conference, the parties discussed options for programming. The parties suggested, and consented to, a test case approach, suggesting that only the applications of Mr Jayasundera and Mr Jenkins would progress to a hearing of the merits.

[8] The other 14 related matters were stayed pending the outcome of the Applicants' matters. Two of the related matters have been discontinued since my previous decision, leaving 12 remaining.

[9] On 29 September 2022, a Hearing was held regarding the merit of the applications.

[10] At the Hearing, the Applicants gave evidence on their own behalf. Mr Roderick Dewsbury (Mr Dewsbury), Senior Employee Relations Consultant, gave evidence on behalf of the Respondent.

[11] The parties have compiled a statement of agreed facts outlining the factual background to the application, in summary, those facts are:

• The Respondent is a national system employer.

• The Respondent is not a small business employer as it employs more than 15 people.

• On 20 October 2021, the Western Australian State Government announced mandatory COVID-19 vaccination requirements for most occupations and workforces in Western Australia.

• On 30 November 2021, the Respondent sent a letter to all its employees. The letter relied on the WA Government Policy and required employees to declare and provide evidence of their vaccination status before close of business on 31 December 2021.

• On 10 December 2021, Mr Jenkins sent an email to his supervisor, regarding the Respondent's requirement to be vaccinated against COVID-19.

• On 16 December 2021, the Respondent sent a reply to Mr Jenkins, in which it advised Mr Jenkins that his request for leave was denied.

• On 17 December 2021, Mr Jenkins escalated the matter to his two-up manager. He emailed and stated he wanted to wait to receive Novavax and that he did not consider his request for leave to be unreasonable.

• • On 23 December 2021, the Chief Health Officer of Western Australia (CHO) issued the Critical Infrastructure Worker (Restrictions on Access) Directions (the Directions).[4]

• The Directions specified the following restrictions:

a) On or from 12.01am on 1 January 2022, a person who is a critical infrastructure worker must not enter, or remain at, a critical infrastructure site if the critical infrastructure worker has not been partially vaccinated against COVID-19; and

b) On or from 12.01am on 1 February 2022, as person who is a critical infrastructure worker must not enter, or remain at, a critical infrastructure site if the critical infrastructure worker has not been fully vaccinated against COVID-19.

• On 23 December 2021, the Respondent, relying on the Directions_,_ issued a direction to its workforce requiring they:

a) Declare and provide evidence of their vaccination status (partially or fully vaccinated before 5:00pm on 31 December 2021); or

b) If exempt from a requirement to be vaccinated against COVID-19, provide formal evidence of the exemption; and

1. Provide evidence of vaccination by completing a form.

• On 24 December 2021, Mr Jenkins escalated his dispute to the Respondent's Human Resources Department.

• On 31 December 2021, the Applicants had not received their first dose of an approved COVID-19 vaccine.

• On 4 January 2022, the Respondent issued a show cause letter.

• • On 6 January 2022, the Respondent received correspondence from the Applicants' Representatives which requested an undertaking from the Respondent to not terminate the Applicant's employment until the determination of the strike-out application pursued by the CHO and the State of Western Australia in the Falconer Proceedings.[5]

• On 7 January 2022, the Respondent emailed the Applicants' Representatives confirming they had received the correspondence. The email stated the below:

"This is just a short note to let you know that we have received your letter of yesterday evening addressed to our Natalia Smith. We are reviewing the content of your letter and will respond as soon as we can".

• On 10 January 2022, prior to responding to the Applicants' Representative, the Respondent terminated the employment of the Applicants, effectively immediately.

• On 31 January 2022, the Applicants' lodged their applications for unfair dismissal remedy with the Fair Work Commission.

• On 1 June 2022, the West Australian State Government announced that, from Friday 10 June 2022, the State's mandatory vaccine policy would only apply to those working with vulnerable people.

• On 7 June 2022, consistent with the above announcement, the CHO revoked the Directions.

• Mr Jayasundera commenced his employment with the Respondent on 25 August 2008.

• Mr Jayasundera's employment was terminated on 10 January 2022.

• Mr Jayasundera was engaged as a Distribution Networks Designer.

• • Mr Jayasundera's employment was subject to the terms and conditions of the Western Power and Australian Services Union Enterprise Agreement 2017.[6]

• Mr Jenkins commenced his employment with the Respondent on 2 October 2017.

• Mr Jenkins' employment was terminated on 10 January 2022.

• Mr Jenkins had previous periods of employment with the Respondent, dating back to 2004.

• • Mr Jenkins' employment was subject to the terms and conditions of the Western Power and CEPU Enterprise Agreement 2017.[7]

• Mr Jenkins put forth additional factors, as listed below, for the Commission to consider in the assessment of his dismissal.

[12] With the exception of the unique elements listed above, the facts concerning the two Applicants' dismissals largely mirror one another and will be considered jointly.

• [13] Section 396 of the Act requires that I determine several initial matters before considering the merits of the Applicants' applications. There is no dispute between the parties concerning these initial matters, and I am satisfied that none of the usual preliminary issues require attention.[8]

Was the dismissal harsh, unjust or unreasonable?

[14] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.

[15] Section 387 of the Act reads:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

• [16] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[9]

Submissions - Evidence - Consideration of criteria

Was there a valid reason for the dismissal related to the Applicants' capacity or conduct?

• [17] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[10] and should not be "capricious, fanciful, spiteful or prejudiced."[11] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[12]

[18] In these matters, the reason for dismissal is a notable point of contention between the parties.

[19] The Applicants submit that the reason for dismissal was their alleged failure to comply with a direction from the Respondent to provide proof of vaccination (the Employer Direction).

[20] The Respondent submits that the reason for dismissal was the Applicants' inability to fulfil the inherent requirements of their roles.

[21] The Applicants further submit that, the reason relied upon by the Respondent in its submissions, arises only as a result of their alleged refusal to comply with the Employer Direction and the Applicants' vaccination status being at odds with the requirements of the Directions.

[22] The Applicants submit that the reason for the dismissal is not valid as the Applicants had in fact complied with the Employer Direction for the following reasons:

• Consistent with the requirements of the Directions, at no time, from 1 January 2022, did the Applicants attend a critical infrastructure site unvaccinated from COVID-19; and

• As per the Employer Direction, the Applicants provided their vaccination status to the Respondent prior to the cutoff at 5pm on 31 December 2021.

[23] The Respondent, in the show cause letter sent to the Applicants on 4 January 2022, stated:

"in accordance with the Health Direction you are not permitted to enter any Western Power workplace or facility and are stood down from duty effective 1 January 2022 until you are advised of the outcome of the show cause process."

"As you are not permitted to enter or remain at Western Power sites you are unable to perform the requirements of your contract of employment. A failure to perform the requirements of a contract of employment is an appropriate basis for termination".

[24] The Respondent submits that it did not instruct, or direct, the Applicants to become vaccinated. Instead, the Respondent submits, it communicated the impact that the Directions would have on the Applicants if they did not comply with its vaccination requirements. The Respondent highlighted that this decision did not arise from any internal policy matter, rather, it was a mandate.

• [25] The Respondent submits that the relevant authority in dealing with a statutory COVID-19 mandate is the decision of the Commission in Roy-Chowdhury v The Ivanhoe Girls Grammar School, notably, in which the Commission found "...it indisputable that an employee's inability to perform the inherent requirements of their role is a matter going to an employee's capacity."[13]

[26] It is probable that the wording in the show cause and termination letters sent to the Applicants contributed to the disagreement over the reason for dismissal. The Respondent, in those letters, refers to the Applicants' noncompliance with the instruction to provide their vaccination status.

[27] On assessment of the material before me, it is clear the parties seem to have conflicting notions of what this mention of compliance means.

[28] The Applicants submit that they have indeed complied with the Employer Direction as they notified the Respondent of their vaccination status (unvaccinated).

• [29] The Respondent does not dispute that the Applicants made clear their desire to remain unvaccinated.[14] Although the letters make reference to the Applicants' lack of compliance with providing their vaccination status, it is clear that the central issue is not an absence of response but rather it is that the practical effect of the information provided lead to the Applicants inability to attend their workplace.

[30] In any event, the reason for the terminations was not the disputed noncompliance with the Employer Directions.

[31] The submission that the Applicants had complied with the Directions is also questionable.

[32] Firstly, the Respondent does not submit that the Applicants acted in violation of the Directions by attending the workplace.

[33] In the Applicants' reasoning, there would appear to be two avenues through which one could comply with the Directions; either by being vaccinated or by not attending the workplace.

[34] The distinction between those two options is clearly that only the first does not restrict a worker from attending the workplace and enables them to participate in work.

[35] The Applicants were restricted from the workplace by the Directions, the submission that they complied with the Directions by not overtly contravening them is disingenuous. Had the Applicants attended the workplace they would have been subjecting themselves to further disciplinary action by the Respondent and potentially fines or punishment by other authorities.

[36] In any event, like above, the reason for the terminations was not the disputed noncompliance with the Directions.

[37] From the material provided, the Respondent's reference to compliance clearly suggests that employees comply with the vaccination requirements in the Directions to be able to attend the workplace to fulfill the requirements of their role.

[38] The Applicants, by failing to meet the vaccination requirements in the Directions, no longer had the ability to access site and perform the inherent requirements of their positions with the Respondent.

[39] The Respondent provided correspondence to employees in December 2021, explaining that any employee without a valid medical exemption would, more than likely, be terminated from their employment in the Respondent's business if they did not become vaccinated.

[40] The Respondent clearly articulated, in the show cause letter of 4 January 2022, that the Applicants' vaccination status placed the Respondent in a position whereby it could not allow their attendance at the workplace. As a result, the Applicants could not meet the inherent requirements of their position, giving rise to termination.

• [41] I note the decision in APS Group (Placements) Pty Ltd v Stephen O'Loughlin,[15] in which the Full Bench of the Commission clarified:

"Section 387(a) of the FW Act requires FWA to consider "whether there was a valid reason for the dismissal". This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act)."[16]

[42] The parties, in their disagreement over the reason for the dismissal, both acknowledged that the Commission may come to a conclusion (about the reason) that is different to that offered by the Respondent.

• [43] If the reason relied upon by the Respondent was different to that given in the letters, then my consideration of the two subsequent criteria would be altered.[17] However, even if the reason for dismissal was the reason asserted by the Applicants, the facts of the applications before me would not give rise to an altered assessment. In any event, the reasons for dismissal put forward by either party are all included in the letters to the Applicants, eliminating any concerns regarding notification and response.

[44] The Respondent's letters make clear that a chain of events lead to the ultimate reason for dismissal being the Applicants' inability to perform the inherent requirements of their roles:

"Termination has occurred because you did not comply with the lawful instruction of 23 December 2021, to provide proof of vaccination in order to meet the mandatory requirements of the Critical Infrastructure Worker (Restrictions on Access) Directions (the Health Directions) issued by the Chief Health Officer of WA on 23 December 2021.

Without complying with the Health Directions, you are unable to enter or remain at Western Power work sites which is essential for you to perform the requirements of your contract of employment"

• [45] I note the Applicants' submission that the inability to perform the requirements of their role only arose in the circumstances where the Directions prohibited the Applicants' attendance. This line of reasoning is misguided, the inability to perform the inherent requirements of one's role usually arises from some parallel series of events and does not negate the ultimate conclusion that one is unable to perform their role.[18]

[46] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicants' capacity - the Applicants were unable to meet the inherent requirements of their role.

[47] I note that the Applicants' have put forth additional arguments, some related to this consideration, that will be discussed later.

Were the Applicants notified of the valid reason?

[48] Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant was notified of the reason for dismissal.

• [49] Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment,[19] and in explicit[20], plain, and clear terms.[21]

[50] The Respondent submitted that, in compliance with the Act, the Applicants were notified of the reason why the Respondent was considering terminating their employment.

[51] The Respondent issued a show cause letter to the Applicants on 4 January 2022.

"Consequently, in accordance with Health Directions you are not permitted to enter any Western Power workplace or facility and are stood down from duty effective from 1 January 2022 until you are advised of the outcome of the Show Cause process. As you are not be permitted to enter or remain at Western Power sites you are unable to perform the requirements of your contract of employment. A failure to perform the requirements of a contract of employment is an appropriate basis for termination."

[53] I am satisfied the Applicants were notified of the reason, being a failure to perform the requirements of their role, prior to the decision being made to end their employment.

Were the Applicants given an opportunity to respond to any valid reason related to their capacity or conduct?

[54] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity.

[55] An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[22]

• [56] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[23]

• [57] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[24]

[58] The Applicants acknowledge that, on 4 January 2022, they were issued with a show cause letter from the Respondent.

[59] The show cause letter required a response from the Applicants by 6 January 2022.

[60] The letter also informed them that a decision in relation to their ongoing employment would be made on 7 January 2022.

[61] The Applicants' Representative sent a letter to the Respondent on 6 January 2022.

[62] In their letter, the Applicants' Representative sought an undertaking from the Respondent that the Applicants' employment would not be terminated until the determination of a strike out application in the Falconer Proceedings.

[63] The Applicants' Representatives requested that they be given additional time to consider the Court's decision in the Falconer Proceedings before notifying the Respondent of the Applicants' intentions.

[64] The Respondent, on 7 January 2022, acknowledged they had received the letter, were reviewing the letter, and would respond.

[65] The Applicants submit that, whilst they were waiting for a substantial response from the Respondent, the Respondent unexpectedly terminated the Applicants' employment on 10 January 2022 effective immediately.

[66] The Applicants submitted that the Respondent's action to terminate their employment prior to responding to the correspondence of 6 January 2022, was manifestly unfair and harsh_._

[67] The Applicants submitted that, as they had not received a substantial response from the Respondent, they did not expect to be terminated from their employment, at least until a response had been received. The Applicants submit that they relied upon the assurance given by the Respondent in its acknowledgement email.

[68] The Applicants submitted that this assurance stopped them from seeking an urgent injunction from the Supreme Court that could prevent the Respondent from dismissing them. Once the Applicants were terminated on 10 January 2022, they could no longer seek such an injunction.

[69] The Respondent submitted that the Applicants did have an opportunity to respond to the reason. The Respondent submitted that it went to significant lengths to ensure all employees, including the Applicants, were aware of the consequences associated with not receiving a vaccine.

[70] The Respondent submitted that the Applicants' argument on this consideration is narrow and confined to the fact that no formal response was given to the Applicants' Representative prior to the terminations.

[71] The Applicants did not make any submissions that they did not have adequate time to respond to the show clause letter.

[72] The Respondent submitted that the issue pursued by the Applicants' does not concern procedural fairness, as the Respondent clearly provided the Applicants with the opportunity to respond or not provided sufficient time to respond. Instead, the Applicants take issue with not being provided a pause of their dismissals pending the determination of other litigation in the Supreme Court.

[73] The Respondent submitted that the below items mitigated any perceived unfairness:

• The Applicants' request for the undertaking, to defer their dismissals, was made at the eleventh hour.

• The Applicants' Representatives made a request of the Respondent.

• The Applicants' Representatives do not, in their letter, request an immediate undertaking or specify any deadline to respond.

• The Applicants' Representatives made clear that there were no directions from the Applicants to initiate Supreme Court proceedings.

• The Respondent, in its email, did no more than simply acknowledge receipt of the letter and confirmed a response, at no specified time, would be given.

[74] The Respondent submitted that it was under no obligation in fairness or law to react positively to the Applicants' request in the letter.

[75] The Respondent submitted that it did not provide any undertaking, assurance, or suggestion that an undertaking would be provided to the Applicants.

"This is just a short note to let you know that we have received your letter of yesterday evening addressed to our Natalia Smith.

We are reviewing the content of your letter and will respond as soon as we can."

[77] The Respondent submits that the Applicants were free to make any application of their choosing to the Supreme Court and that the Respondent never provided any assurance or similar to the Applicants to prevent that.

[78] The Respondent submits that no unfairness arises out of the way the Respondent dealt with the Applicants' request made at the eleventh hour.

[79] Mr Jenkins, whilst providing evidence before the Commission, confirmed that, had he been aware the Respondent was not going to respond formally to the letter of 6 January 2022 prior to terminating his employment, he would have instructed his legal representative to seek an urgent injunction from the Supreme Court restraining his dismissal from the Respondent.

[80] The Respondent issued the show cause letter which, in clear and non-uncertain terms, confirmed to the Applicants that their employment with the Respondent was in jeopardy.

[81] The show cause letter made clear that a final decision regarding their ongoing employment would be made on 7 January 2022.

[82] Between the period of 4 January 2022 and 7 January 2022, the only material received by the Respondent in relation to the show cause letters was the letter of 6 January 2022. That letter did not raise any specific or individual considerations for the Respondent to consider.

[83] The Applicants' legal representative made a request of the Respondent, to not take any further action until Justice Allanson delivered his reserved decision in the Falconer Proceedings.

[84] As the Respondent submitted, this request was made at the eleventh hour and there was nothing that prevented the Applicants from instructing their legal representatives to apply for an injunction in the Supreme Court.

[85] There is no suggestion, in the Respondent's email acknowledgement, that the Respondent was considering providing the undertaking or pausing the termination process until a response was provided. The email simply acknowledges that the Respondent had received the letter and would respond. There is no firm indication of when or how a response would be given and there is also no indication as to what the details of such a response would be.

[86] The Respondent provided the Applicants with the opportunity to respond to the show cause letter, the Applicants acknowledge that they received the communication, and they provided a response. The Respondent then made the decision, based on the information on hand, to terminate the Applicants' employment.

[87] I do not accept that the Respondent's email could be seen as assurance that the termination process would halt.

[88] There is nothing that prevented the Applicants from directing their representatives to seek an injunction, or perhaps to write a detailed response to the show cause letter, at any time prior to their termination.

[89] As discussed in greater detail later, the Respondent provided a significant amount of information to the Applicants about what would occur if they remained unvaccinated. The Applicants should have been aware that the termination of their employment was likely in early January 2022.

[90] I do not agree with any proposition that the Applicants were denied procedural fairness, or the opportunity to respond, by the Respondent's method of response to their representative's letter.

[91] In all the circumstances, I find that the Applicants were given an opportunity to respond to the reason for their dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicants to have a support person present to assist at discussions relating to the dismissal?

[92] Neither party submitted that this consideration is a live issue. I am satisfied there was no unreasonable refusal of a support person.

Were the Applicants warned about unsatisfactory performance before the dismissal?

[93] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent's enterprise and the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[94] The Respondent employs over 2500 employees.

[95] The Applicants submitted that the Respondent had a well-resourced internal human resources department and access to external legal support as required.

[96] The Respondent submitted that it conducted itself to a standard that would be expected for an organization of its size.

[97] I find that the procedure followed was satisfactory and reflective of a well-resourced organization of such size.

[98] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

[99] The Applicants submitted that the following matters are relevant to the Commission's consideration of whether the dismissal was harsh, unjust, or unreasonable.

[100] The Applicants submitted that Section 162 and 202 of the Public Health Act 2016 (WA) (PH Act) prohibit the punishment of employees in their employment by reason of their obligations to comply with a public health direction issued by the CHO.

[101] The Applicants submit that, section 162 and 202 of the PH Act, and in particular sub-sections 3(b)(ii) and (iii) of each, expressly provide that, where a person has complied with the Directions, the employee cannot incur any civil or criminal liability.

[102] The Applicants submit that the provisions of the PH Act provided protection against the termination of their employment.

[103] The Respondent submits that the Applicants' submission in relation to section 162 and 202 of the PH Act is "misconceived and result in a manifestly absurd outcome".

[104] The Respondent outlined that, under the interpretation provided by the Applicants, it was possible for its entire workforce to elect not to be vaccinated and claim protection from dismissal.

[105] The Respondent submits that there is no protection the Applicants could rely on from sub-section 3(a), 3(b)(i) or 3b(ii) of either section 162 or 202 of the PH Act, as the dismissal of the Applicants did not relate to an instance of an employee attracting either a "civil or criminal liability", committing a "breach of any duty of confidentially or secrecy" or exhibiting "unprofessional conduct".

[106] The Respondent, in its submissions, expands on what it considers to be the correct interpretation of the PH Act.

[107] In its interpretation, the Respondent draws reference to statutory purpose behind the combined effects of the State Government's mandates regarding vaccination; being that the mandates acted to foster protection against the pandemic and ensure the maintenance of essential services.

[108] The Respondent submits that the correct interpretation of section 162 or 202 of the PH Act reveals it applies to circumstances where an employee's act or omission, that would normally be regarded as misconduct, does not amount to misconduct when it is done in compliance with the restrictions.

[109] The Respondent employed the following example to illustrate the intended purpose of the protections in the PH Act; if one of the unvaccinated employees were directed to attend the workplace, in contravention of the Directions, the employee would be entitled to refuse such request and be afforded the protections in the PH Act.

[110] The Respondent submits that Applicants were dismissed due to their inability to fulfil the inherent requirements of their position and not because of any conduct that, if not for the protections in the PH Act, would usually be rendered misconduct.

• [111] I note the decision of Allanson J in Falconer v Commissioner of Police,[25] in which the Court considered an application challenging an employer direction for a workforce to become vaccinated. The Applicants' representatives attempted to pursue an argument regarding the PH Act, which was ultimately rejected:

At the hearing, the applicant amended his application to add a further ground 3(f) that the Commissioner's power under s 5 of the Police Act is constrained by s 162 and s 202 of the Public Health Act, and the Employer Direction is beyond power because it would circumvent those protective provisions.

The relevant part of each section is in the same terms, and provides that a person must comply with a direction given under either s 157 or s 190 and:

(a) no civil or criminal liability is incurred as a result of that compliance; and

(b) complying with the direction is not to be regarded as -

(i) a breach of any duty of confidentiality or secrecy imposed by law; or

(ii) a breach of professional ethics or standards or any principles of conduct applicable to the person's employment; or

The effect of the Employer Direction is to impose a separate obligation on those subject to it to be vaccinated. It does not regard an unvaccinated officer who complies with the Directions as having breached any duty, or principle of conduct applicable to that person's employment. Disciplinary proceedings are not brought because an unvaccinated officer has complied with the Directions and not attended his place of work, but because that officer has refused an order that they be vaccinated.

• [112] Consistent with the Allanson J's finding above, it is clear that the terminations (much like the disciplinary proceedings referred to by Allanson J) of the Applicants resulted from their inability to meet the inherent requirements of their role and not because, in compliance with the Directions, they did not attend their workplace.[27]

[113] The Employer Direction in this matter also imposes a separate obligation on the Applicants, consistent with the conclusion drawn by Allanson J.

[114] The argument put forth appears blind to the reality that the Applicants, even if protected under the PH Act for their non-attendance, remained unable to access the workplace. The Applicants' lack of access the workplace clearly leads to their inability to meet the inherent requirements of their positions. It is this issue of capacity that ultimately gave rise to termination and not because the Applicants complied with the Directions and did not defy them by unlawfully attending the workplace.

[115] I accept the Respondent's submissions regarding the interpretation of the PH Act.

[116] The Applicants' position regarding the protection offered under the PH Act appears to be a problematic attempt to twist the intended function of the provisions to obtain legal protection in circumstances not worthy of such protections.

[117] In summary, the argument put forth has no relevance to this matter as:

• • The reason for the dismissals was not for any compliance or noncompliance with the Employer Direction to provide their vaccination status.[28]

• • The reason for the dismissals was not for any compliance or noncompliance with the Directions.[29]

• • The Applicants were dismissed as they could not fulfil the inherent requirements of their position.[30]

• Even if the reason for dismissal was noncompliance with the instruction, consistent with Allanson J's findings, that would impose a separate obligation on employees than the one under the Directions and therefore the protections in PH Act would not be enlivened.

• The Applicants' nonattendance of the workplace was not conduct that would give rise to the protections in the PH Act.

[118] The Applicants also submit that the Respondent was unreasonable in failing to consider Mr Jenkins' request to wait for the Novavax vaccine.

[119] The Applicants submitted the below chronology of events to contextualise this issue:

• 30 November 2021 - Respondent first requests the Applicants provide their vaccination status.

• 10 December 2021 - Mr Jenkins advises the Respondent of his choice to receive Novavax in early 2022.

• 16 December 2021 - Mr Jenkins' request to access either paid or unpaid leave is refused by the Respondent.

• 17 December 2021 - Mr Jenkins reiterates his choice to wait for Novavax in 2022.

• 22 December 2021 - Critical Infrastructure Directions are issued.

• 23 December 2021 - Employer Direction is issued.

• 10 January 2022 - Mr Jenkins' employment is terminated.

• [120] The Applicants draw comparison to the circumstances of the applicant in Pskiet v Maicap Unit Trust T/A Nocelle Foods (Nocelle).[31]

[121] Evidence was given that Mr Jenkins was fully vaccinated with Novavax on 9 March 2022.

[122] In his evidence, Mr Dewsbury outlined the below:

• In late December 2021, there were 78 employees who were either vaccine hesitant or had made it clear they would not be vaccinated and comply with the direction.

• An additional 65 employees had not yet provided proof of any vaccination.

• At this stage, the Respondent was facing as many as 143 employees departing the business operations.

• There was a concern within the Respondent's business about the impact this would have on the Respondent's operations.

• To the best of Mr Dewsbury's knowledge, there were seven other employees who, like Mr Jenkins, had communicated to the Respondent their intention to receive Novavax when it became available.

• Mr Dewsbury confirmed that, as a consequence of the vaccine mandate, the Respondent terminated a total of 30 employees.

[123] Mr Dewsbury outlined that the Respondent determined employees would not be afforded the ability to take leave to delay compliance for the following reasons:

• Fairness and consistency of how the mandate was applied.

• Concern that, if it recognised exceptions (other than medical), it could set precedent or expectation for other employees.

• Concern that, by granting exceptions or leave, it would increase vaccine hesitancy.

• Did not want to create a situation whereby employees who were vaccinate hesitant previously, then became vaccinated, lost trust in the Respondent.

• Concerns about the risk of employees, who had no intention of becoming vaccinated at any point, using exemptions or leave to defer their dismissal.

• Concerns that operational capacity could be compromised if the Respondent started granting exemptions.

[124] The Respondent communicated to employees, in a FAQ document issued on 10 November 2021, the following:

"Western Power will require all its employees....to receive their first vaccination dose by 31 December 2021, and be fully vaccinated by 31 January 2022."

"You may choose not be vaccinated for COVID-19, however, no employees (except those with a valid medical exemption) will be able to work for Western Power"

"The cut off dates for vaccinations which have been set by the State Government are clear."

[125] Further, the CEO's Message, issued on 19 November 2021, stated the below:

"If these requirements are not met, your employment with Western Power is likely to end soon after these dates. The only exception will be those with certain types of leave approved as of 20 October, the date the mandatory vaccination was introduced by the State Government.

"If you are on sick leave on 31 December or 31 January, you must still be vaccinated.....to remain employed with Western Power".

[126] A further FAQ document, dated 14 December 2021, states:

"Employees who fail to provide proof will be considered to have "failed to comply with a lawful instruction" with the following consequences:

".....stood down 1 January 2022 and will not be permitted to enter any Western Power site"

"....employee will be issued a show cause letter on 4 January 2022. This letter will provide two days for a written response"

"..decision on the employee's future employment will be made on the basis of the written response"

"Where no valid reason for non-compliance with a lawful instruction is provided, the employee will be issued with a termination letter on 7 January 2022".

[127] The FAQ document also included an answer to the following question:

"Can I take leave until the vaccination of my choice is available/the mandate expires?"

"...leave, including sick leave or leave requested after 20 October will not be considered a valid reason to defer compliance with mandated vaccination requirement dates".

• [128] The matter before the Commission in Nocelle also concerned an applicant who, in less explicit terms than Mr Jenkins', expressed their desire to become vaccinated with Novavax.[32]

• [129] The applicant in that matter also had their request to take leave denied by the employer.[33]

• [130] The Commission in Nocelle noted that another employee, who similarly requested leave to await alternative vaccines, was granted their leave request while the applicant was not.[34]

• [131] The conclusion of the Commission in Nocelle relied on the specific policy, timeline, and evidence as was relevant to that applicant and the circumstances of that dispute.[35]

[132] I accept there are similarities in the case of Mr Jenkins to the applicant in Nocelle. However, I am not satisfied that the refusal to grant Mr Jenkins' leave request was unreasonable and note that the Respondent applied this approach to all employees.

[133] Section 88(2) of the Act provides that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. I am satisfied that the Respondent did not unreasonably refuse Mr Jenkins' request.

[134] I accept the evidence of Mr Dewsbury; that the Respondent was subject to a mandate regarding its performance and held significant concern over the delivery of projects if its workforce was unavailable.

[135] I do not agree with the Applicants' submission that the Respondent failed to fairly assess each request, rather, I conclude that the Respondent employed the consideration of fairness very overtly in its decision to deny all requests of the same nature.

[136] In relation to Mr Jenkins' specific request to wait for Novavax, I find the below:

• Mr Jenkins had made a choice that he wished to wait for the Novavax vaccine. That was a choice that he was free to make, however, this would have required Mr Jenkins to have a period of leave (either paid or unpaid) from 1 January 2022 until the release of Novavax. This was an option that the Respondent had addressed and advised all employees was not going to be considered by 14 December 2021.

• • The Respondent's decision to not provide an exemption to Mr Jenkins is reasonable in the circumstances the Respondent found itself in.[36]

• The Respondent had clearly considered the impact that requests for leave (either paid or unpaid) could have on its operations and the message it would send to the wider workforce.

• The Respondent clearly communicated that requests, such as Mr Jenkins', would not be considered and could not be accommodated.

[137] In summary, I am not satisfied that Mr Jenkins' request to await Novavax, and the Respondent's refusal of his leave request, leads to a conclusion that there was not a valid reason at the point of termination.

[138] The Applicants also submit that Mr Jenkins' long term engagement with the Respondent, going back to as early as 2004, should be considered.

[139] I note Mr Jenkins' long tenure with the Respondent and have considered this duly.

[140] The termination of such a longstanding employee by the Respondent supports the evidence that it followed a blanket approach to refusal of leave to avoid unfairness.

[141] The circumstances the parties found themselves in were unfortunate; Mr Jenkins had a relationship with his employer that ended, and the Respondent lost a longstanding employee.

Is the Commission satisfied that the dismissal of the Applicants was harsh, unjust or unreasonable?

[142] I have made findings in relation to each matter specified in section 387 of the Act as relevant.

[143] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[37]

[144] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicants was not harsh, unjust or unreasonable.

[145] The Applicants were provided with procedural fairness and had the opportunity to respond prior to being terminated from their employment with the Respondent.

[146] The Respondent provided information to the Applicants for review and explained the reasons for their decisions. These reasons are sound, defensible, and clearly explained for all employees.

[147] I am satisfied that the dismissals of both Applicants were not unjust, harsh, or unreasonable.

[148] I note Mr Jenkins' special circumstances create a stronger case than that of Mr Jayasundera. However, on assessment of the material before me and analysis of similar matters decided by this Commission, I am not satisfied that those special circumstances are enough to lead to a different conclusion.

[149] The Applicants had a tough decision to make, either comply with the vaccination requirements in the Directions or face the termination of their employment with the Respondent.

[150] There is no suggestion that the Respondent targeted the Applicants or treated them any differently to other employees in the same situation, in fact it would appear that the Respondent went to great lengths to ensure there was a consistent process followed.

[151] The Respondent ultimately decided to terminate the Applicants' employment as they could not perform the inherent requirements of their positions.

[152] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicants were unfairly dismissed within the meaning of section 385 of the Act.

• [153] The Applicants' applications are therefore dismissed, and Order to that effect has been issued.[38]

L Swanson of Hotchkin Hanly Lawyers for the Applicant.

[1] [2022] FWC 1611.

[2] [2022] FWC 1953.

[3] [2022] FWCFB 149.

[4] Chief Health Officer (WA), Critical Infrastructure Worker (Restrictions on Access) Directions (22 December 2021).

[5] Falconer v Chief Health Officer (CIV 2286/2021); Falconer v Commissioner of Police (CIV 2308/2021).

[8] The applications were made within the relevant time period (s.394(2)). The Applicants are persons protected from unfair

dismissal (s.386) The Applicants' dismissals were not cases of genuine redundancy (s.389). The Small Business Fair

Dismissal Code is not applicable (ss.385; 388(1)).

[9] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[10] [1995] IRCA 333; (1995) 62 IR 371, 373.

[12] [1996] IRCA 267; (1996) 142 ALR 681, 685.

[13] [2022] FWC 849.

[14] Noting Mr Jenkins was to remain unvaccinated until Novavax was available.

[15] [2011] FWAFB 5230.

[17] [2011] FWAFB 5230, [51].

[18] For examples, see the summary in [2020] FWCFB 6046 at [19].

[19] (2000) 98 IR 137, 151.

[20] Print Q3730 (AIRC, Holmes C, 6 October 1998).

[22] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[23] [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[24] [1995] IRCA 222; (1995) 60 IR 1, 7.

[25] Falconer v Commissioner of Police [No 4] [2022] WASC 271.

[26] Falconer v Commissioner of Police [No 4] [2022] WASC 271, 57 - 60.

[27] I note that the matters before the Commission and the Court do factually differ, specifically; the employer before the Court issued a direction for employees to be vaccinated - the employer here before the Commission issued a direction for employees to provide proof of vaccination. Notably, both matters concern a direction from the employer imposing an obligation on its workforce.

[28] Compliance and noncompliance here refers to the Applicants' submissions that they complied with the Employer Direction by providing their status as unvaccinated - and the alleged noncompliance with the Employer Direction the Applicants assert is incorrect.

[29] Compliance and noncompliance here refers to the Applicants' submission that their non-attendance at the workplace should be construed as compliance with the Directions - and the alleged noncompliance due to their unvaccinated status.

[30] Noting that the Directions and vaccination status clearly lead to the situation the parties found themselves in, the reason for dismissal remains the Applicants' inability to perform the inherent requirements of their position.

[31] [2022] FWC 1534.

[32] [2022] FWC 1534, [58] - [64].

[33] [2022] FWC 1534, [121].

[34] [2022] FWC 1534, [65] - [66].

[35] [2022] FWC 1534, [122] - [123].

[36] Specifically, in the context of the mandate on delivery of critical projects and the threat of staff shortage due to the Directions.

[37] (2002) 117 IR 357, [51]; See also PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; [1999] FCA 1836, [6]-[7].

[38] [PR750726].

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