Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District

Evidence

1. The only evidence in this matter was given by the applicant, Mr Peck. The respondent relied on that evidence as to the relevant facts in this application. Mr Peck's evidence did not meaningfully differ from the chain of events the respondent had set out in its Employer's Reply to Mr Peck's Original Application.
2. On 26 August 2021 Mr Peck received an email from a Deputy Secretary at NSW Health setting out requirements for certain health workers, including Mr Peck, to be vaccinated "… to continue to work for NSW Health." This email set out a timeframe by which Mr Peck was required to have received a first and a second vaccination.
3. On 29 September 2021 Mr Peck received an email from the Director Workforce at the Hunter New England Local Health District directing Mr Peck onto unpaid leave, because the employer's records indicated Mr Peck was yet to receive at least a first dose of a COVID vaccination. The email referred specifically to the requirements of PHO1.
4. On 8 October 2021, Mr Peck received a letter from the respondent which Mr Peck fairly described as a "show cause" letter "… threatening … termination along with the communication that [Mr Peck] was unable to work at NSW Health as [he] was not compliant with [PHO1]." [1]
5. The relevant portions of the letter set out that [2] : Compliance with the PH Order is a mandatory legal requirement to work in the NSW Health Service. HNELHD records indicate you have not had at least one dose of a COVID-19 vaccine, and you have not presented a medical contraindication certificate in line with the PH Order. Assuming HNELHD records are correct, you do not meet the Public Health order requirements to work for the NSW Health Service. Therefore, you must not attend for work at HNELHD from now on. By default, you are on unpaid leave unless you made an application to use existing leave entitlements such as annual leave. Despite having been given a reasonable period of notice, you do not meet vaccination/medical contraindication requirements, and accordingly unable to perform your role/ work in the NSW Health Service. Accordingly, NSW Health is considering the viability of your future employment, including whether to terminate your employment. You are invited to provide a submission that you wish to make as to why your employment should not be terminated. The submission will be considered carefully before a decision is made about your ongoing employment with the NSW Health Service.
6. On 14 October 2021, Mr Peck's representatives responded to the show cause letter in Mr Peck's name. On 22 October 2021, Mr Peck personally sent an identical letter to the respondent.
7. The 14 October and 22 October letters set out Mr Peck's response, including most relevantly [3] : I have attempted to meaningfully engage in a consultation process with relation to the work health and safety issues arising from the recent Public Health Order and my desire to obtain a risk assessment for Covid-19 and the Covid-19 Vaccination in my workplace. I have and will continue to emphasise that I am ready, willing and able to work beyond the mandated deadline. … I cannot see any rational basis as to why my employment should be terminated given my good faith dealings, especially while I continue to emphasis I am ready, willing and able to work and it is my employer who is driving this process and I have made clear that it appears unlawful or at the very least - premature. In good faith, I have requested consultation about Covid-19 and the Covid-19 vaccination within the workplace to ensure I am able to make informed decisions regarding my vaccination status.
8. On 22 November 2021, the respondent wrote to Mr Peck in terms which Mr Peck again fairly described as a "second show cause" letter. The 22 November letter set out that [4] : 1. PHO2 had replaced PHO1, but without changing the vaccination requirements for health care workers; 2. The Secretary, NSW Health had made the Determination; 3. The Determination applied in addition to PHO2; 4. The effect of the Determination was that to remain employed, a NSW Health Service employee must have been vaccinated in accordance with the same timetable set out in PHO1 and PHO2; 5. Mr Peck had a "final opportunity" to provide either proof of his having been vaccinated, having an exemption or "… any further response [Mr Peck] may wish to make on [his] proposed termination … given the … [PHO2] and Determination."
9. On 29 November 2021, Mr Peck's representative wrote to the respondent in response to the 22 November letter, relevantly setting out [5] : 10. Our member complains that he has not been afforded natural justice, both in the investigation phase that has taken place, as well as in the manner in which he has been required to provide a response before action is undertaken. 11. Our member complains that natural justice has not been afforded on the basis that: a. He has not been afforded a reasonable time to respond; b. He has not been provided with sufficient information to respond, particularly in circumstances where material has been not provided in circumstances where such disclosure was necessary to afford our client a proper opportunity to respond; … 15. In our respectful submission, our member should have been afforded a minimum of 2 to 3 weeks to conduct the above steps, with an additional allowance for any time that Glen Innes Hospital delays in response to the requests for further information that our member now presents. 16. On the basis of the foregoing, our member therefore seeks the following material: a. Details on what information was provided to any decision maker in terms of other material; b. A copy of each statement made to any investigator, or the employer more generally, including transcripts of interviews, recordings, file notes and emails in an entirely unredacted manner, that have not been provided to date; and c. Any and all other information and material that was used in any determination or to investigate the allegations as outlined in the Show Cause letter. 17. On the basis of the foregoing, it becomes clear that our member has received treatment by Glen Innes Hospital which is failing to accord him natural justice. 18. Our member also seeks (on the basis of the foregoing) an undertaking from Glen Innes Hospital that: a. He will be provided all the information that he has requested; b. He will be afforded a minimum period of 2 weeks to respond to the contents of the Show Cause letter, with such time period to begin from the time that he receives the material requested; and c. He will not be subjected to any further adverse action whilst the process continues. 19. Our member reserves his rights in respect of all legal action available to him, both under statute and common law (including in equity). 20. We anticipate that there will be further requests for particulars when such instructions are provided to us.
10. On 1 December 2021, Mr Peck received a letter from the Chief Executive of the Hunter New England Local Health District headed "Notice of Termination of Employment". The key portions of the letter set out that [6] : I refer to recent correspondence wherein Hunter New England Local Health District wrote to advise you that your employment could be terminated if you did not meet Covid-19 vaccination requirements. This is in accordance with the Public Health Orders and Ms Elizabeth Koff, NSW Health Secretary, Determination dated 12 November 2021. You were provided with a number of opportunities to consider and respond to the proposed termination of your employment. Despite those requests, you have not provided appropriate evidence of Covid-19 vaccination or an exemption due to a medical contraindication in order to comply with; - Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 or the Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021; or - The Secretary's Determination 33 of 2021 which made vaccination against COVID-19 a condition of employment in the NSW Health Service. I have reviewed your submission as to why your employment should not be terminated. Your submission makes clear that you remain unwilling to meet vaccination requirements. As such the decision has been made to terminate your employment and is effective as at the date of this letter. You will be paid in lieu of any required notice period. Your notice payment will be the higher amount of either the notice period contained in the termination clause of the relevant Award or the minimum notice period as specified by the Fair Work Act 2009. … I understand termination in these circumstances may be difficult for you. Notwithstanding the termination of your employment, I would like to take this opportunity to thank you for your service with NSW Health. Should you be vaccinated in the future, you are welcome to apply for available positions within NSW Health.

Submissions

1. Mr Peck's written submissions are relevantly encapsulated in the following extracts from the Applicant's Reply to Respondent's Documents and Outline of Submissions, filed 11 April 2022 [7] : 10. The Applicant submits that neither the PH orders and Determination No. 33 are valid as applicable to the Applicant to terminate his employment or prevent him from performing any work, as related to not meeting Vaccination Requirements; as no vaccine has completed the full approval process by the Therapeutic Goods Administration (TGA) of the Commonwealth for use in Australia, as a vaccine against COVID-19, as all COVID-19 vaccines currently in use in Australia, are under the provisional pathway, awaiting full approval … … 18. None of the PH Orders (1, 2, 3) or the Determination No.33 specify provisional approval of a COVID-19 vaccine in their definitions / dictionary, to be applicable to the actual provisional status of the COVID-19 vaccines available in Australia. … 19. I ask that the Commission find that the PH Orders (1, 2, 3) and Determination No.33 are not applicable to myself, related to the COVID-19 Vaccination Requirements as the current COVID-19 provisional vaccines available do not meet the conditions of these PH orders and Determination No. 33 documents as specified in their definitions / dictionary, as being fully approved for use in Australia.
2. Mr Peck tendered extracts form the Therapeutic Goods Administration (TGA) website which on their face established the provisional status of the TGA approval for all COVID-19 vaccines. The respondent did not challenge Mr Peck's submissions that this was the true state of COVID-19 vaccine approval.
3. Mr Peck was clear that, in his submission, a provisional approval is not the same as an "approval". In support of this position, Mr Peck drew the Commission's attention to the process of provisional approval and noted that the TGA specifically point out that what is learned through that process may ultimately not result in final approval. That is, despite current provisional approval for the use of the COVID-19 vaccines, in the end they may be found not to be safe and may be denied final approval.
4. In oral submission, Mr Peck said: Well, to sum it up, the COVID-19 orders from the government, from Brad Hazzard are asking me to take a potentially dangerous, unsafe drug, that hasn't been fully approved, that is on the provisional pathway. Everything on the TGA webpages, which is what the government relies on, indicates that these vaccine - all the vaccine medications, have not been approved. I mean, if we go to the document here - document E, in the paragraph, and I've quoted it, I believe, "Many of the large scale clinical trials that could provide evidence of safety and effectiveness are still progressing, and these results will be provided to the TGA as they become available." [8] … And here … quoting again from the TGA, "Before any COVID-19 vaccine is approved for use in Australia, it will be subject to the well-established and vigorous assessment and approval process of the Therapeutic Goods Administration, TGA." They've not been approved. When I was looking at the TGA website, the most recent dating is - update, is 10 June. None of the status of any of the vaccines has changed. They're still awaiting approval, they're still on the provisional pathway. There hasn't been evidence to prove that these are safe. If we relate this to the Public Health Orders, written 1, 2, 3, or the Determination 33, the language of those documents, they say of an approved - they all refer to an approved COVID-19 vaccine. No COVID-19 vaccine has been approved. Not one. [9]
5. When asked by the Commission about a distinction drawn in some recent Fair Work Commission decisions between a vaccine mandate and a choice to vaccinate or remain employed, Mr Peck was very clear in articulating that such a choice was an "unfair choice"; directly referencing the jurisdiction of this Commission to review the termination of his employment.
6. In oral submissions Mr Peck said: Just in relation to what you were saying before about a choice, many staff at the hospital - at my hospital - did not want to take the vaccine, but for many reasons, often economical and for family, they felt they had to take it. Taking a COVID-19 vaccine was not a fair choice for them. My actual choice was to accept an unapproved, unknown medication into myself, or face a prospect of no hospital employment. That is not a fair choice. I feel that by not having an unapproved medication as an RN, I have shown the appropriate critical thinking about - related to administration of an unsafe medication. Many vaccine side effects, such as chest pain, are already well established, and the risks of the vaccine outweigh any benefits related to this questionable pandemic. [10]
7. Neither Mr Peck's oral or written submissions specifically addressed the issue raised in his initial application as to vaccines not stopping an individual from contracting or passing on COVID-19, and his related offer to wear PPE or take other protective measures to stop transmission.
8. The respondent's submissions can be succinctly summarised from the Respondent's Outline of Submissions, filed on 29 April 2022, relevantly: 21. The Vaccination Requirements were imposed on the Respondent under the [Public Health Act 2010 (NSW)] and [Health Services Act 1997 (NSW)], and the Respondent was bound to comply. 22. The important distinction between the PH Orders and the Determination is that, whilst the PH Order prohibited the relevant 'health care workers from performing any work unless they met the Vaccination Requirements (or exemption), the Determination went a step further and prohibited any applicable employee from being lawfully employed unless they met the Vaccination Requirements (or exemption). 23. Accordingly, the Determination applied to the Applicant and mandated that he was not able to be employed or remain employed by the Respondent because he did not meet the mandatory condition of employment. … 28. The Respondent submits the Vaccination Requirements, and in particular, the PH Orders, are legislative requirements. The PH Orders dictated that vaccination against COVID-19 was a requirement to perform 'health care work'. These were obligations under law and not at the Respondent's discretion to decline to comply with. 29. The Applicant was dismissed from his employment because he failed to comply with the Vaccination Requirements. Firstly, the Applicant could not and cannot lawfully work as a 'health care worker' under the PH Orders and secondly, the Applicant not meet the mandatory condition of their employment as fixed by the Determination. 30. The Applicant was afforded procedural fairness throughout the entire process. Specifically: a. The Applicant was given reasonable and repeated notice of the Vaccination Requirements and reasonable opportunities to comply and take medical advice; b. The Applicant failed to provide evidence of their compliance with the Vaccination Requirements; c. The Respondent replied to the Applicant's correspondence; d. The Applicant was given reasonable opportunity to respond to the proposed termination of their employment; and e. The Respondent gave consideration to the Applicant's response. 31. The dismissal decision was validly made and implemented and the Applicant was duly informed of that decision in writing. … 37. The Applicant failed to provide evidence of compliance. 38. As a result, Respondent issued the Applicant with a show cause letter on 8 October 2021 and 22 November 2021. 39. The Applicant responded on 22 October 2021 and 29 November 2021. The Applicant again did not provide evidence of their compliance with the Vaccination Requirements. 40. The Respondent considered the Applicant's response. 41. The Respondent determined to terminate the Applicant's employment and wrote to the Applicant on 1 December 2021 informing them of this decision. … 49. The Applicant has, by their inaction, failed to comply with the Vaccination Requirements. The Respondent maintains these failures constitute a valid reason for dismissal. … 61. For the reasons set out about, the Respondent invites the Commission to make the following findings: a. Non-compliance with the Vaccination Requirements was and is a valid reason for dismissal due to the Applicant's incapacity and/or due to the frustration of the contract of employment; and b. The Vaccination Requirements render reinstatement or reemployment of an Applicant who is non-compliant impracticable, tor the purposes of s 89 of the IR Act.

Consideration - Was the Dismissal of Mr Peck Unfair?

1. Pursuant to s 87 of the IR Act, if conciliation has failed, the Commission is to determine an application made pursuant to s 84 " … by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act."
2. In determining an application, the fundamental question the Commission must answer is whether a dismissal is unfair, as being a dismissal that is one or more of harsh, unreasonable or unjust. Section 88 of the IR Act provides certain matters which the Commission may, if appropriate, take into account.
3. In this claim, the matters in s 88 of the IR Act which are appropriate to take into account on the question of whether the dismissal was unfair are those in s 88 (a), (b) and (d).
4. Section 88 (c) is not appropriate to take into account as there is no suggestion in this case that Mr Peck was dismissed for unsatisfactory performance.
5. Section 88 (e) will only be appropriate to take into account in this case in respect of any remedy permitted by s 89 of the IR Act, if the Commission first determines the dismissal is unfair.
6. There is no dispute in this case that Mr Peck was told in clear terms the reason for his dismissal (s 88 (a)), or that he was given an opportunity to make out a defence or give an explanation in respect of that reason (part of s 88(b)).
7. Whether the reason Mr Peck was given had a basis in fact is one of the issues in dispute between the parties (the remainder of s 88(b)).
8. Clearly Mr Peck was not vaccinated as contemplated by PHO1, PHO2 or the Determination. In dispute is whether those requirements could apply to Mr Peck, given his submissions that it is not possible to comply with the requirements of PHO1, PHO2 and the Determination.
9. I do not consider that, as the respondent submitted, I should give the submissions of Mr Peck that only a final approval can amount to an approval, short shrift. Mr Peck's submission was not fanciful, contrived or clearly unarguable.
10. Mr Peck took the Commission to parts of certain TGA publications on the TGA processes for approval which might suggest that a provisional approval is a step along a process to an "approval". Ultimately, I consider it would be asking this Commission to read too much into those publications to conclude that a provisional approval is not a form of approval.
11. Moreover, it is the whole of the phrase "approved by the [TGA] for use in Australia as a vaccine against COVID-19" which should be considered, not just the word "approved".
12. Each of the PHO2 and Determination referred to a COVID-19 vaccination which is approved for use in Australia. It is true that each of the COVID-19 vaccinations approved by the TGA is provisionally approved. Nevertheless, they are approved for use in Australia.
13. The absence of the words "in Australia" from the definition of COVID-19 vaccine in PHO1 probably makes no difference to this conclusion, but the dismissal occurred when PHO2 was in place.
14. Accordingly, I consider that the respondent's reason for termination has a basis in fact.
15. Mr Peck submitted that a choice to take a vaccine, or be dismissed, was an unfair choice. However, that this formulation fails to take into account the obligations on the respondent pursuant to PHO1 and PHO2 not to allow an unvaccinated health care worker to do health care work. A health care worker who cannot do health care work is unable to perform an inherent requirement of their job.
16. This additional factor would of itself be sufficient to prevent the choice being unfair, as the impact of the choice on Mr Peck needs to be balanced against the impact of the parallel obligation on the respondent created by PHO1 and PHO2.
17. However, even without this counter balancing obligation on the respondent it would not be an unfair choice. It may be a choice that Mr Peck does not like, and it may be one with serious consequences, but it was one imposed in particular circumstances. Those circumstances included unprecedented restrictions on citizens, businesses and public services, and most importantly that the choice was imposed on health care workers.
18. It is frankly impossible to conceive of a profession on whom such a choice could more obviously be imposed. In Mr Peck's case he was a registered nurse working in a public hospital.
19. To the extent I need to consider whether the Determination is a lawful and reasonable direction it follows from the foregoing that I do consider it both lawful and reasonable.
20. From the totality of [44-48] it is clear that consideration of the issues covered by s 88(d) of the IR Act do not support a conclusion that the dismissal was unfair.
21. In terms of such other matters as I consider relevant (s 88(f)), I have taken into account Mr Peck's substantial employment history with the respondent and the clear economic impact of the dismissal on Mr Peck. I have also taken into account the clearly genuinely held concerns of Mr Peck about the risks of the available vaccines.
22. I considered the matters Mr Peck raised in his Original Application as to vaccinated individuals still being susceptible to being infected and infecting others with COVID-19, along with his related offer to wear PPE or undertake other infection prevention measures.
23. I do not consider I can give much weight to such matters. Primarily this is because no evidence was presented to the Commission about the risks of infection for vaccinated individuals.
24. The use of PPE and other infection controls were similarly not the subject of any evidence which would enable this Commission to include consideration of the issue in this decision.
25. I do not consider any of the specific matters set out in s 88 (a), (b) or (d) make the dismissal of Mr Peck unfair.
26. I do not consider that any other matters, as set out above, make the dismissal of Mr Peck harsh, unreasonable or unjust.

Consideration - Outcomes Pursuant to Section 89

1. Accordingly, there is no basis to consider any of the potential remedies provided pursuant to s 89 of the IR Act.

Decision

1. The application is dismissed. C Muir Commissioner

Endnotes

1. Paragraph 7 of applicant's statement filed 16 March 2022
2. Attachment 3 to applicant's statement filed 16 March 2022
3. Attachments 5 and 6 to applicant's statement filed 16 March 2022
4. Attachment 4 to applicant's statement filed 16 March 2022
5. Attachment 7 to applicant's statement filed 16 March 2022
6. Attachment 8 to applicant's statement filed 16 March 2022
7. By the time of the hearing PHO2 had been replaced by a new public health order numbered 3, but in materially the same terms as PHO1 and PHO2.
8. Transcript page 14, line 42
9. Transcript page 15, line 16
10. Transcript page 19, line 11 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2022