Gogulwar v H.B. Fuller Company Australia Pty Ltd [2025] FCA 1529

[4]

Devries v Australian National Railways Commission (1993) 177 CLR 472

Gogulwar v H.B. Fuller Company Australia Pty Ltd [2025] FCA 1529 | Case summary | Zoe

[23]

The Victorian Government is requiring all Authorized employees to get vaccinated in an effort to drive down Covid cases ahead of the state's reopening and as part of Victoria's Plan to Deliver the National Roadmap.

On the advice of the public health team, all workers - in Melbourne and regional Victoria - on the authorized Worker list will require their first COVID-19 vaccine dose by Friday, 15 October in order to continue working onsite. They will need to be fully vaccinated by 26 November.

H.B. Fuller is a global manufacturer that supports customers in agricultural produce, processed food packaging, beverage packaging, hygiene product manufacture and building/construction materials. The work performed is categorized as authorized work and as such, deems HB Fuller as a 'Authorized Provider'.

In essence this will mean that all employees in Victoria will be bound by these restrictions. Below is a set of Q&A to assist with any questions that surround the announcement made by the Victorian Government.

When do workers have to be vaccinated by?

In order to continue working on site, they will need to have the first dose of the vaccine by 15 October, and the second dose by 26 November. All workers will be required to validate their vaccination status.

Do these conditions cover other people coming on site?

All Casuals, Customers, Contractors and Visitors will be required to validate their Vaccination Status by a permit before being allowed to visit or perform work on the premises.

What if I don't want to get vaccinated?

Unfortunately, like all other businesses subject to this governmental directive, we are not permitted to allow employees access to the workplace. All employees are free to access what leave they have accrued. Further unpaid leave can be requested an approved on a case by case basis.

More information can be obtained from the Victorian Government Website: https://www.premier.vic.gov.au/ vaccination-required-protect-workers-and-victoria

Thanks for your support and co-operation. If you have further questions in relation to this matter, please talk to your manager or contact me on my mobile.

In cross-examination, Mr Dorgan was asked about the 5 October 2021 memorandum. His evidence was that the extent of the information in the memorandum under the heading "What if I don't want to get vaccinated?" was modelled off the public health directive at the time and nothing further was included because the Company held the belief at that time that most people would want to get vaccinated. He did not include any information for people who did not want to disclose their vaccination status because he did not think anyone in the organisation would not tell their managers their vaccination status. Also in cross-examination, Mr Rae gave evidence that a safety risk assessment was not done prior to introducing this direction.

Following the 5 October 2021 memorandum, Mr Rae was responsible to follow up and confirm the vaccination status of each employee. He requested that employees provide evidence in the form of a copy of their vaccination certificate. An example of one such email Mr Rae sent to Melbourne employees on 12 October 2021 was in evidence before the Court.

[24]

Mr Gogulwar did not take without protest to either mandate. His reactions to the requirement that he wear a face covering whilst at work are the subject of observations that were recorded by the primary judge but which needn't here be replicated: Primary Judgment, [51]-[67]. It suffices to observe that he resisted the requirement on the basis that it caused him various health-related concerns, about which he sought and received limited medical advice. His reactions to the requirements of the vaccine mandate are the subject of similar observations, which it is convenient to reproduce (Primary Judgment, [68]-[76]):
1. On 1 October 2021, the Applicant was called in to Mr Lewis's office and was given a copy of the Victorian Government's media release issued that same day. Mr Lewis accepted that he did so because he was generally aware from discussions with Mr Rae and Mr Ramamurthi (his direct reports) that the Applicant was concerned and reluctant about the introduction of the vaccine mandate and wanted to make the Applicant aware of the key dates. The Applicant characterised this discussion as that Mr Lewis had "dictated" that he needed to get the vaccine and show proof of vaccination before 15 October 2021 or he would not be permitted to attend the workplace. Mr Lewis denied such characterisation however both accounts support a finding that Mr Lewis made clear that a vaccine mandate was going to be imposed by the Victorian Government and the Company would require all employees to comply.
2. On 5 October 2021, in response to the Company's 5 October 2021 memorandum (with the vaccination direction), the Applicant sent an email to Mr Dorgan in which he queried the year from which the vaccine mandate would apply and stated he could not effectively respond to the email and make an informed decision in the absence of this information. On 6 October 2021, Mr Dorgan sent an email to the Applicant in reply in which he confirmed the vaccine mandate deadline would apply from 2021 and directed the Applicant to further information on the Victorian Government website. Copies of this email exchange were in evidence before the Court.
3. At or around 11 October 2021, the day before Mr Rae had emailed all Melbourne employees to remind them that their vaccination certificate was to be provided by 15 October 2021, Mr Rae raised with Mr Lewis that the Applicant had not yet disclosed his vaccination status. Mr Lewis then telephoned the Applicant and asked him to discuss the issue in person.
4. On 13 October 2021, the Applicant filed an online complaint form with WorkSafe Victoria which described the Applicant's safety concerns related to COVID-19 vaccination and requested a risk assessment of his business practice area. In that complaint, the Applicant stated that he disagreed with the Victorian Government (Acting Chief Health Officer)'s directions made under the emergency powers for public health and wellbeing and that these could be read in isolation of the Fair Work and other workplace, discrimination, privacy, health and safety laws. He also expressed his view that the Company had not complied with s.35 of the Occupational Health and Safety Act 2004 (Vic) because it had not provided relevant information or consulted with him about alternatives. The complaint also included the following:

[25]

Formal Complaints

I formally complain under s 341 of the Fair Work Act 2009 (Cth) ('the FWA') that any suggestion that OH&S consultation is unnecessary because of the directive is misleading about my workplace rights and may be conduct contrary to s.345 of the FWA.

Potential Industrial Dispute

If my industrial instrument prescribes a dispute that the above applies to, this is also a notification of a Stage 1 industrial dispute under this instrument.

Complaints about Unlawful Discrimination and Privacy

Further, I complain the mandate may amount to discrimination, breach of privacy and is contrary to my human rights including my employer forcing me indirectly, uninformed consent to a medical procedure, and I wish to meaningfully engage in the complaint with my employer.

Complaint under Complaints Process or Code of Conduct (if any)

Finally, I am formally complaining about my employer's complaints' policy and if this letter is not sufficient, please provide the proper form to me, albeit my complaint is self-explanatory.

I would say that any attempt to suggest I am behaving with misconduct or not following lawful orders cannot be a reason now that you have the benefit of this correspondence.

I foreshadow being represented if the above is ignored or rejected and if we have not resolved within two days: I appoint:

Schedule of Contacts

Red Union Support Team on behalf of my industrial associates

xxxxxx@xxxxxx.com.au

P: (07) xxxx xxxx

Or if they are not recognised by my employer, Supportah Australia Industrial Advocates;

xxxxxxxxx@supportah.com.au

P: 1800 xxx xxx

Or if they are not recognised by my employer, Jack McGuire, Kathleen Campbell, Miles Heffernan, and Aenghas Hopkinson-Pearson in their personal capacity

xxxxxx@unionsupport.com.au

P: (07) xxxx xxxx

On 14 October 2021, Mr Rae raised with Mr Dorgan that the Applicant was the only employee who had not disclosed his COVID-19 vaccination status at that time - Mr Rae deposed that he then left the matter for Mr Dorgan and Mr Lewis to deal with. Mr Dorgan then spoke with Mr Lewis and it was agreed between them that there should be a discussion with the Applicant about the matter and a notice provided to the Applicant.

On 15 October 2021, Mr Lewis met with the Applicant and directed the Applicant to disclose his vaccination status to the Company. The Applicant did not disclose his vaccination status. There were otherwise different accounts of the discussions on this day, which are resolved later in these reasons with regard to the totality of the evidence before the Court:

(a) According to Mr Lewis, the Applicant said words to the effect of: "What will you do if I show up?". In response, Mr Lewis told the Applicant that the Company could not let him on the Site after 15 October 2021 if he had not been vaccinated and had not confirmed his COVID-19 vaccination status. In reply, the Applicant repetitively said words to the effect of "You do what you need to do for the business.". Mr Lewis accepted that he may have told the Applicant he was being "uncooperative" and that they were trying to work with him but he was making it hard.

(b) Whereas the Applicant's evidence was that he had verbally advised Mr Lewis of his intention to take annual leave from 18 October 2021 in order to decide on his position on the mandatory COVID-19 vaccination policy options. For his part, Mr Lewis did not accept that oral applications for leave would ever be allowed. Mr Dorgan acknowledged that an informal leave request by email may ordinarily have been acceptable.

The Applicant also said that, at or around that time, he had informed Mr Lewis, Mr Rae and Mr Ramamurthi of their safety obligation to consult with him and to consider his concerns but that the Company was not willing to have such discussion and reiterated their direction. The Applicant's affidavit also said that a portion of the WorkSafe complaint was emailed to the Company at the same time (ie. during the 15 October 2021 meeting), but no such email was produced and in cross-examination the Applicant clarified that it was mentioned during the meeting but not sent.

In cross-examination, Mr Ramamurthi accepted that the Applicant raised the need to consult under occupational health and safety legislation with him and recalled having said in response that the Company was obliged to follow the mandatory vaccine policy and no consultation was required for safety purposes. However Mr Ramamurthi denied any awareness of the Applicant's WorkSafe complaint at that time or during the Applicant's employment at all.

All of the Company's witnesses denied any knowledge of the WorkSafe complaint at any time during the Applicant's employment and said they only found out when WorkSafe attended the Site on 2 and 10 May 2022 or as a result of these Court proceedings.

[61]

The learned primary judge assessed (and, ultimately dismissed) each of the four causes of action that emerged from Mr Gogulwar's statement of claim.
The first concerned Mr Gogulwar's dismissal and the extent to which it was actuated by his possession or exercise of a "workplace right" (or workplace rights). There was (and remains) no doubt that Mr Gogulwar's dismissal on 27 October 2021 qualified as "adverse action" for the purposes of s 340(1) of the FW Act. At issue before the primary judge was - and now, before this court, is - whether that adverse action was visited because (or for reasons that included that) Mr Gogulwar possessed or exercised any such right or rights.
The primary judge was concerned, in the orthodox way, to identify the workplace right or rights by reason of which Mr Gogulwar asserted that he had been subjected to adverse action. For reasons that will shortly become apparent, it is unnecessary to trace her Honour's findings in that regard in anything more than a summary way.
The first workplace right to which Mr Gogulwar pointed inhered in his making of a complaint to a statutory agency known as WorkSafe. The primary judge accepted that such a complaint was made and that its making amounted to the exercise of a workplace right that Mr Gogulwar possessed; but accepted, in any event, the evidence led on behalf of the respondent that it was not brought to the attention of any of the respondent's agents prior to Mr Gogulwar's dismissal: Primary Judgment, [120]-[121]. Thus was her Honour satisfied that the complaint "...could not have been an actuating reason for [Mr Gogulwar's] dismissal."
Mr Gogulwar also relied upon his having complained to the respondent about "alleged bullying and harassment". Apparently en route to concluding that no workplace right had been relevantly exercised, her Honour summarised the evidence as follows (Primary Judgment, [124]):
1. In the present case the evidence was that in or around early June 2021 the Applicant told Mr Ramamurthi (as his supervisor) that Ms Collie (a co-worker) had spoken with him about not wearing his face shield when performing his duties and that she did not accept his explanation when offered. It was not contentious and on the evidence it may be accepted that, at the time, the dynamic between employees on Site was tense because the COVID-19 pandemic was at its peak. It may be accepted that, at that time in Victoria, fear was heightened amongst employees and at least one supplier to the Site who were in a privileged position to continue working as an "essential business" whilst restrictions on public freedoms were tightening and the instance of the virus was rapidly spreading. The Applicant, who did not wear a face mask at work and did not always wear a face shield at work in exception to the direction that other employees were required to follow, felt that other employees were behaving differently toward him. Whether the Applicant used the term "harass" in bringing his issue with Ms Collie to Mr Ramamurthi's attention, I prefer Mr Ramamurthi's account and find that he discussed the matter with the Applicant in early June 2021 and it was resolved at that time. Taking the Applicant's case at its highest, there is no evidence that the Applicant sought redress or to take the matter further during or following this discussion.

[62]

Mr Gogulwar further submitted that he had exercised his workplace right to request or take annual leave. The primary judge accepted - and it was plainly the case - that he possessed such a right. However, as to its exercise, her Honour's reasons record as follows (Primary Judgment, [129]-[133]):
1. The evidence does not establish that the Applicant had exercised his workplace right to apply for or take a period of annual leave on 15 October 2021 (which was when compliance with the COVID-19 vaccination disclosure direction was due but not provided and the same day that Mr Lewis met the Applicant to discuss the matter) or at any time on and from 18 October 2021 (which was the day of the next shift, from which the Applicant's absence from work commenced). There is no documented record of such request, whether agreed or approved or otherwise, and a strong dispute on the evidence about whether it was made at all.
2. The evidence of the communications between the Applicant and his managers in the subsequent period, on 20 and 21 October 2021, supports a finding that the Applicant had thought it was optional for him to take annual leave whilst considering whether to take the COVID-19 vaccine but goes no further. For example, in the email exchange between the Applicant and Mr Lewis on 20 October 2021, the Applicant conveyed his prior understanding that it would be an option to him to access his leave entitlements if he did not wish to "get inoculated" and expressed his bewilderment at the Company's change of position. In that email, the Applicant sought more time in which to respond but did not request to take leave of any kind. The further email from the Applicant of 21 October 2022 more directly challenged the Company's right to retrospectively change its position on the taking of leave but again did not include a request to take leave of any kind.
3. According to the plain words of the 5 October 2021 memorandum (and perhaps also conveyed at the town hall meeting on 4 October 2021), the taking of accrued annual leave was an option that the Company proactively offered at that time to the Applicant and other employees if they did not want to get vaccinated. By 21 October 2021, the Company had changed its position about the purpose for allowing leave given the further clarity provided by the Victorian Government. Nonetheless, I accept that the Company would have considered any leave applications made on a case by case basis, having regard to the operational requirements of the business, and may also have reasonably refused the Applicant a period of annual leave given the difficulties experienced in filling his position. Indeed, it is established that the Company did allow another employee a period of annual leave for the purposes of considering whether to take the COVID-19 vaccine. Unfortunately for the Applicant, he did not make such application to use his accrued annual leave entitlements and so a disciplinary process commenced about his inability to comply with the inherent requirements of his role (his inability to attend Site for work given the Victorian Government's health orders and his non-compliance with the vaccination disclosure direction).
4. Even if a request to take annual leave were formally made on or around 15 October 2021 (which is not established on the evidence), by his text message of Saturday 23 October 2021, the Applicant had made it clear that he did not want to be put on annual leave for "this week" (understood to be a reference to the week commencing 18 October 2021) and asked Mr Ramamurthi to await his response on the coming Monday (25 October 2021). Then, on 25 October 2021, the Applicant sent a further text message confirming he wanted Mr Ramamurthi to hold on to his payment for now and would respond the following day. Mr Ramamurthi's silence in response to those text messages is reflective of the fact that he understood the Applicant's requests.
5. Having found that: the Company was willing to entertain annual leave as a time buying solution if requested and operational requirements so permitted; and that the Applicant's only possible request to take annual leave was clearly withdrawn; and there being no evidence that annual leave was sought or taken in accordance with an applicable workplace law or workplace instrument at or around the relevant time, it follows that I am satisfied that the neither the fact of or exercise of the Applicant's workplace right to take annual leave were an actuating reason for the Applicant's dismissal.

[64]

Having surveyed those parts of the Primary Judgment, it is convenient to focus upon her Honour's findings about the reasons that underpinned Mr Gogulwar's dismissal. The primary judge accepted (and it does not appear, in any event, to have been the subject of controversy) that the decision to dismiss Mr Gogulwar was attributed jointly to Messrs Dorgan and Lewis, respectively the respondent's National Human Relations Manager Australia and New Zealand, and Operations Manager Australia and New Zealand. Both of them gave evidence at the trial about why it was that they were minded to effect Mr Gogulwar's dismissal. Both expressly disclaimed any suggestion that he had done so because, or for reasons that included that, Mr Gogulwar had possessed or exercised any of the workplace rights that he had identified. Both instead maintained that Mr Gogulwar's dismissal was a function of the fact that he had not disclosed whether or not he had been vaccinated against the COVID-19 virus. That, so both maintained, meant that the respondent was unable, by reason of the Victorian Government's vaccine mandate, to permit Mr Gogulwar to attend at its Dandenong South facility to perform his work. Mr Lewis told the court that the respondent did not wish to dismiss Mr Gogulwar (a sentiment echoed in the evidence of Mr Gogulwar's supervisor Mr Ramamurthi); but that it was left in such a position that it felt that no other realistic option was available.
The primary judge was minded to accept that evidence about their reasons for doing what they did. It is convenient to replicate those findings (Primary Judgment [184]-[185]):
1. I accept the evidence of Mr Dorgan and Mr Lewis, who I have accepted were the relevant and only decision-makers, that the reasons for the Applicant's dismissal were his failure to follow a reasonable and lawful direction and his inability to perform the inherent requirements of the role. The Company was required to comply with the Victorian Government's public health directions and was not permitted to allow the Applicant access to Site unless and until he disclosed his vaccination status. The Company directed the Applicant to so comply and he did not do so. That was the reason for his dismissal and there was no other reason. While it may be noted that at least Mr Lewis (if not also the other managers involved) found the Applicant to be uncooperative in the process of their endeavours to implement the Victorian Government's changing health directions, and that it was a period of uncertainty and change for all concerned, it is apparent that the Company demonstrated their preparedness to work with the Applicant and identify solutions to overcome his concerns. I also accept the evidence of Mr Ramamurthi that it was difficult to find skills like that of the Applicant and took a long time to train a replacement to perform his role - such that it was not the Company's preference to dismiss the Applicant. Finally, the documentary records of the disciplinary process support this finding.
2. On my assessment of all of the evidence before the Court, the reasons for which the Company claims to have conducted itself in dismissing the Applicant were the actuating reasons. Those reasons were the failure to follow a reasonable and lawful direction in disclosure of his COVID-19 vaccination status and inability to perform the inherent requirements of the role given he could not be permitted to attend for work on Site. Those reasons were objectively justifiable, and the evidence does not establish any other actuating, substantial or operative factors.

[74]

Mr Gogulwar's final cause of action concerned the suggestion that he had been discriminated against in contravention of s 351 of the FW Act: specifically, in that he had been required to wear a face shield contrary to medical advice and that the respondent had failed to afford him "reasonable accommodations". Those consequences, he said, were visited upon him in contravention of s 351(1) of the FW Act in that they were actuated by his "physical or mental disability" and/or his "political opinion".
The primary judge accepted that those consequences were apt to be (or could at least potentially be) described as "adverse action" for the purposes of s 351(1) of the FW Act: Primary Judgment, [175]. Likewise, her Honour noted that, "...to the extent it was understood to form part of this ground, [there was no dispute that the dismissal] was an adverse action": Primary Judgment, [176].
As to whether any of the adverse action in question might be understood to have been actuated by any physical or mental disability of Mr Gogulwar's, her Honour observed (Primary Judgment, [179]-[180]):
1. Even if the Applicant were understood to contend that the disability was the medical condition subject of the medical certificate dated 10 June 2021 that requested he be exempt from wearing a face mask, on plain inspection of that certificate it does not specify the nature of the medical condition as to constitute any physical or mental disability within the statutory meaning. And, when questioned by the Company, the Applicant's medical practitioner did not disclose the nature of the medical condition but rather confirmed symptoms the Applicant experienced when required to wear a face mask or shield and the adjustments required to ensure those symptoms were not experienced. Beyond identification of an unspecified medical condition, the evidence does not support a finding that either the Applicant or his doctor ever advised the Company of the nature of any physical or mental disability prior to his dismissal.
2. In the absence of the Company having any knowledge of the Applicant's physical or mental disability, or indeed any proof that he had a physical or mental disability at the relevant times prior to his dismissal, this component of the fourth ground must fail.

[76]

As he did at the trial, Mr Gogulwar labours under the natural limitations that attend self-representation. I mean no disrespect in saying so - indeed, Mr Gogulwar's submissions were presented more coherently than those of most self-represented litigants. Nonetheless, his notice of appeal is 23 pages long and articulates 101 separate grounds of appeal. Nothing is to be gained by setting out the appeal grounds in their entirety. It suffices to note that they present not as discrete assertions of error but as submissions that have been framed with an equivalent design. Again without intending any disrespect, my understanding of Mr Gogulwar's contentions has required an unhelpful degree of interpolation. For what it might be worth, I have little doubt that the primary judge laboured under equivalent difficulties.
Fortunately, by the written and oral submissions that were made on appeal, Mr Gogulwar's grounds have been refined into seven identifiable bases upon which it is said that the primary judge erred. In the analysis that follows, I will address each in turn on the accepted footing that doing so will suffice to determine the appeal. Before turning to each such basis, though, something should be said about the court's task.
The present appeal is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act"). It proceeds as an appeal by way of rehearing: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, 87 [70]-[71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ, citing Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172). The court's powers on appeal - enumerated in notorious form by s 28 of the FCA Act - are exercisable insofar as the primary judgment is shown to be attended by legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ). In other words, the "...views and conclusions of the trial judge ultimately have to be shown to be wrong": Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 438 [30] (Allsop J, with whom Drummond and Mansfield JJ agreed).
In Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; (2020) 278 FCR 1, 119-121 [404]-[406] (Bromwich, O'Callaghan and Wheelahan JJ), the full court observed:
1. The principles that guide appellate review of findings of fact made by a trial judge have been discussed and applied in many High Court cases over the course of more than 100 years. Those cases include: McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) [1904] HCA 51; (1904) 1 CLR 243 at 277 (Griffith CJ); Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561 (Isaacs J); Scott v Pauly [1917] HCA 60; (1917) 24 CLR 274 at 278-281 (Isaacs J); Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 218-225 (Dixon CJ and Kitto J); Voulis v Kozary [1975] HCA 44; (1975) 180 CLR 177 at 181-183 (McTiernan J); Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 537-553 (Gibbs ACJ, Jacobs and Murphy JJ); Brunskill v Sovereign Marine & General Insurance Company Ltd [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53 () at 844; 56-57 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ); ; at 178-179 (McHugh J); (1993) 177 CLR 472 () at 479-481 (Deane and Dawson JJ); ; ; () at [73]-[93] (Kirby J); ; at (McHugh, Kirby and Callinan JJ); ; at , [37]-[41] at (McHugh J), [92] (Gummow J), [103], [163]-[164] (Kirby J); at [22]-[31] (Gleeson CJ, Gummow and Kirby JJ); ; ; () at [17]-[24] (Gleeson CJ, Kirby J agreeing); ; () at [76] (Heydon, Crennan and Bell JJ); ; () at [29]-[34] (Gageler J), [153] (Edelman J); and ; at (Bell, Gageler, Nettle and Edelman JJ, Kiefel CJ at [1] agreeing).

[88]

Mr Gogulwar describes the first of his seven refined appeal grounds as alleging a "Failure to Comply with Statutory and Contractual Consultation Duties". By it, he seeks to impugn what he says was her Honour's conclusion that he was the recipient of a lawful and reasonable direction (namely, to disclose his vaccination status).
Key to Mr Gogulwar's contentions are the consultation obligations under which he maintains that the respondent relevantly laboured. They are and were, he says, to be found in s 35 of the Occupational Health and Safety Act 2004 (Vic), and in cl 32 of the EA. The submission is straightforward: because the respondent was obliged by those provisions to consult with its employees about the introduction of certain measures (including measures connected with the preservation of their safety at work); and because, insofar as concerned the Victorian Government's vaccine mandate, no such consultation took place, it was not open to the learned primary judge to conclude that the direction that he disclose whether or not he was or would become vaccinated against the COVID-19 virus was one properly described as "lawful and reasonable".
I confess some confusion about the significance of the submission (assuming that I might accept it). Insofar as I was able to follow, Mr Gogulwar appears to submit that her Honour's conclusions about the reasons that animated the respondent in dismissing him were improperly formed. That is, had she properly appreciated that, in the absence of prior consultation about it, the direction was not one that could be described as "lawful and reasonable", her Honour would (or may) have been disposed to reject the respondent's evidence about the reasons for which the dismissal was effected. The contention is aimed at impugning as erroneous her Honour's factual findings about the reasons for which the respondent engaged in the conduct in which it engaged.
It is not apparent to me that her Honour concluded that the direction that was given to Mr Gogulwar (and other employees) to disclose his (and their) vaccination status was a lawful and reasonable one. There was no need for her Honour to draw any such conclusion one way or the other. The question that her Honour was called upon to resolve was whether or not the dismissal had been effected because (or for reasons that included that) Mr Gogulwar had possessed or exercised a workplace right or workplace rights. That was the question to which she directed herself and, with respect, properly so.
It is apparent that the respondent's decision to effect Mr Gogulwar's dismissal was premised upon the opinions of Messrs Dorgan and Lewis that the direction that he had been given was a lawful and reasonable one. Mr Gogulwar expends considerable effort in trying to show that those opinions were wrong; but, for present purposes, it wouldn't matter if they were. The question for her Honour to determine was not whether the direction was lawful and reasonable; it was whether the respondent (through its officers) was actuated to act as it did on the basis of its opinions (and not on a basis proscribed by pt 3-1 of the FW Act).
It is in that sense that her Honour's assessment of the respondent's evidence assumes primary significance. Each of Messrs Dorgan and Lewis gave direct evidence about why it was that the respondent was minded to terminate Mr Gogulwar's employment. Each was cross-examined on that evidence. Her Honour, like any trial judge, had the advantage of seeing those witnesses give the evidence that they gave. Her acceptance of their evidence was plainly - indeed, could not other than have been - based at least in part upon her assessment of the credit with which each of them gave it. Recent decisions of this court might lead some to wonder whether the need for appellate deference toward factual findings of that nature has been relaxed, particularly in matters that attract some measure of political or policy interest. It has not been. As the authorities essayed earlier show without ambiguity, the proper exercise of appellate jurisdiction in a matter such as this insists that the court be very slow to substitute its own views about what factual conclusions ought to have been drawn.
As it is, I would have no hesitation in accepting her Honour's conclusions in any event. Whatever might be said about the lawfulness and reasonableness of the direction that was given to Mr Gogulwar, her Honour's description of the reasons underpinning his dismissal as "objectively justifiable" is unimpeachable. So to observe is not to suggest that they were legally or factually "correct", or otherwise reflected the only course that was open to the respondent in the face of Mr Gogulwar's obvious reservations about the COVID-19 vaccine. But what is unambiguously plain is that they "hung together" in a way that makes objective sense and is lightyears removed from what might qualify as "glaringly improbable". It was not the respondent that introduced the Victorian vaccine mandate. By all accounts - as the primary judge noted - the respondent was sufficiently happy with the work that Mr Gogulwar was performing and would have preferred not to have had to dismiss him. Its decision was "objectively justifiable" because it found itself in the unenviable position of having to enforce Victorian Government policy that some found objectionable. Its options were fabulously limited and it chose the one that most obviously aligned with a mandate that the state had made sufficiently clear was to be enforced.
Mr Gogulwar's submissions invite comment about whether or not it was appropriate for the respondent to be co-opted (or to allow itself to be co-opted) to the enforcement of government policy. It is not for this court, nor was it for her Honour, to venture opinions about such matters. Respectfully, her Honour was astute not to be drawn to that end; and her example is one that I must and will follow.
Mr Gogulwar's first ground (or refined ground) cannot be accepted. Whether or not the direction that he disclose his vaccination status was lawful and reasonable was not material. The primary judge's factual findings about the reasons that animated (and, just as importantly, did not animate) his dismissal cannot be impugned in the manner that Mr Gogulwar seeks to impugn them.

[89]

By his second refined ground of appeal, Mr Gogulwar charges the primary judge with having failed to apply the "reverse onus" for which s 361(1) of the FW Act provides.
So much may be accepted, he says, because of what her Honour concluded at [185] of the Primary Judgment. It pays to repeat what her Honour concluded at [184]-[185]:
1. I accept the evidence of Mr Dorgan and Mr Lewis, who I have accepted were the relevant and only decision-makers, that the reasons for the Applicant's dismissal were his failure to follow a reasonable and lawful direction and his inability to perform the inherent requirements of the role. The Company was required to comply with the Victorian Government's public health directions and was not permitted to allow the Applicant access to Site unless and until he disclosed his vaccination status. The Company directed the Applicant to so comply and he did not do so. That was the reason for his dismissal and there was no other reason. While it may be noted that at least Mr Lewis (if not also the other managers involved) found the Applicant to be uncooperative in the process of their endeavours to implement the Victorian Government's changing health directions, and that it was a period of uncertainty and change for all concerned, it is apparent that the Company demonstrated their preparedness to work with the Applicant and identify solutions to overcome his concerns. I also accept the evidence of Mr Ramamurthi that it was difficult to find skills like that of the Applicant and took a long time to train a replacement to perform his role - such that it was not the Company's preference to dismiss the Applicant. Finally, the documentary records of the disciplinary process support this finding.
2. On my assessment of all of the evidence before the Court, the reasons for which the Company claims to have conducted itself in dismissing the Applicant were the actuating reasons. Those reasons were the failure to follow a reasonable and lawful direction in disclosure of his COVID-19 vaccination status and inability to perform the inherent requirements of the role given he could not be permitted to attend for work on Site. Those reasons were objectively justifiable, and the evidence does not establish any other actuating, substantial or operative factors.

[90]

With very great respect to him, Mr Gogulwar's contention is plainly misconceived and its proper rejection does not warrant more than summary effort.
Strictly speaking, it might be better to speak of s 361(1) of the FW Act as a statutory presumption rather than as the reversal of an onus (appreciating that the extent to which there might be any practical difference is likely very limited). An applicant who alleges a contravention of s 340(1) (or any other provision within pt 3-1) of the FW Act bears the onus of establishing the facts necessary to make it out. One such fact is that particular action has been taken for a particular reason or reasons. Substantial assistance is afforded to that end by s 361(1), in that it is unnecessary for an applicant to lead evidence about the state of mind by which particular conduct was actuated. Nonetheless, the provision remains as it is: a presumption as to the truth of something that an applicant alleges (namely, a state of mind), which, like most presumptions, can be rebutted.
A respondent that is charged with having engaged in conduct for a reason that the statute presumes and proscribes may rebut that presumption by leading evidence that tends to show that it did not so engage for that reason. Typically, a respondent does that by leading evidence about why it did engage in the conduct; but the question for the court remains whether it should accept that it did not do a particular thing for the reasons that are statutorily presumed.
That's precisely what occurred in this matter. After hearing from the relevant officers, the primary judge was disposed to accept that Mr Gogulwar was dismissed because Messrs Dorgan and Lewis considered that he had failed to follow a reasonable and lawful direction that resulted in his being unable to perform the inherent requirements of his role. As her Honour put it: "[t]hat was the reason for his dismissal and there was no other reason" (my emphasis). To note, as her Honour later did, that there was no evidence of any "other actuating substantial or operative factors" is simply to recognise the evidential landscape with which she was faced. It was open to Mr Gogulwar to lead such evidence if he could (appreciating the difficulty inherent in that endeavour). Her Honour simply noted that there wasn't any.
There was no error in that approach.

[91]

Mr Gogulwar's third refined ground of appeal is similar to his first. He maintains that the primary judge "...failed to apply the exemptions in the COVID-19 Mandatory Vaccination (Workers) Directions." The contention is straightforward enough: Mr Gogulwar maintains that the public health order that gave effect to the Victorian Government's vaccine mandate was worded in such a way that permitted him to remain in his employment and that her Honour ought to have found as much.
Again, the contention may swiftly be addressed. Whether the vaccine mandate was open to interpretation in the manner that Mr Gogulwar submits is not material. It may be accepted that her Honour appears to have favoured the view that the respondent "was required to comply with the Victorian Government's public health directions and was not permitted to allow [Mr Gogulwar] access to Site unless and until he disclosed his vaccination status": Primary Judgment, [184] (above, [70]). Nothing turns on that. At issue was (and is) not whether the respondent's interpretation of the directive was correct; at issue was (and is) whether it acted in the way that it did (including by effecting Mr Gogulwar's dismissal) because it considered, rightly or otherwise, that that was an inevitable consequence of the directive.
On that, as I have already said, her Honour's conclusions are unimpeachable. She accepted what the respondent's witnesses told the court; and did so in part based upon her assessment of the manner in which they gave their evidence. It might be remembered that the evidence disclosed a reluctance on Mr Gogulwar's part to meet with the respondent's representatives in October 2021 (prior to his dismissal). It is not apparent that he ever availed himself of the opportunity to educate them about what he said was the precise operation of the Victorian Government's vaccine mandate. Certainly, there is no suggestion that they rejected it as false (although the construction upon which they acted was plainly different).
Nonetheless, Mr Gogulwar implores the court to consider the terms of the vaccine mandate directive; and to accept his interpretation of it, which accommodates some prospect that he might have been able to attend at the respondent's site to perform his work even in the absence of disclosure of his vaccination status. With respect, the thought and industry that underpin his analysis are commendable; but the question is academic. The suggestion that her Honour was obliged to turn her mind to the precise requirements of the directive and that her failure to do so was "a failure to consider a mandatory relevant consideration" is wrong. The proper construction of the directive was not an issue that it was necessary for the court to resolve. Even assuming that it might have aided an understanding about the lawfulness or reasonableness of the direction that Mr Gogulwar was given, that too is, at best, peripheral to the question that the court was called upon to answer. The central issue with which her Honour was concerned was whether or not the respondent effected Mr Gogulwar's dismissal because, or for reasons that included that, he had possessed or exercised a workplace right or workplace rights. That is what her Honour did and, respectfully, her analysis was orthodox and beyond appellate criticism.
Having said all of that, I was taken to the terms of the COVID-19 Mandatory Vaccination (Workers) Directions promulgated by the Victorian Acting Chief Health Officer on 7 October 2021, which is the instrument upon the proper construction of which Mr Gogulwar's contention rests. "PART 2" thereof was entitled "EMPLOYER OBLIGATIONS". Clause 4 of the direction required that employers "...collect, record and hold vaccination information" about workers who were scheduled to work otherwise than at their ordinary place of residence on or after 15 October 2021. Clause 5 prohibited employers from thereafter "...permit[ting] a worker who is unvaccinated to work for that employer outside the worker's ordinary place of residence". Clause 6 conferred certain "exceptional circumstances" exemptions in respect of the obligations otherwise imposed by cls 4 and 5. Relevantly, employers were exempted from those requirements insofar as concerned workers who were "required to fill a vacancy to...continue essential operations due to an emergency situation or a critical unforeseen circumstance" or who were "required to perform urgent and essential work to protect the health and safety of workers or members of the public, or to protect assets and infrastructure".
At least on appeal, Mr Gogulwar contends that those exemptions were apt to cover his employment because his role as a maintenance technician involved work that was relevantly "urgent" or "essential" in nature. It is not clear whether those contentions were advanced before the primary judge; but even assuming that they were, they are not compelling. On any view, the directive contemplates exemptions only in "exceptional circumstances" involving "urgent and essential" work. The suggestion that that might have encompassed the daily tasks of a maintenance worker at a factory is ambitious, to say the least.

[92]

By his fourth refined ground of appeal, Mr Gogulwar takes aim at the primary judge's conclusions that "I 'was not treated differently to other employees', that 'all employees were asked to disclose their vaccination status,' and that differential treatment on masking was only to accommodate my doctor's opinion". Mr Gogulwar maintains that he was subjected to differential treatment insofar as concerned his access to leave and the speed with which he was progressed to the point that his employment was terminated.
It is not immediately clear how this ground assists Mr Gogulwar. Before the primary judge, he contended that his dismissal amounted to adverse action for the purposes of s 340(1) of the FW Act in part because it involved discriminatory treatment of the kind referred to in s 342(1). There was never any doubt that Mr Gogulwar's dismissal was an instance of adverse action that the respondent took against him and her Honour proceeded on that basis. Whether it was adverse action because it involved the termination of his employment or because it involved discriminatory treatment is academic. Having concluded that the dismissal was not effected for a reason or reasons proscribed by s 340(1) of the FW Act - and, therefore, that the adverse action was not unlawfully visited in contravention of that injunction - there is no point in relitigating whether or not it was relevantly discriminatory.
As with refined grounds 1 and 3, Mr Gogulwar appears to submit that, had the primary judge appreciated that he had been a victim of discriminatory treatment, she would have realised that the direction that the respondent gave him was neither lawful nor reasonable. Again, and for the reasons that have already been rehearsed, the contention invites unnecessary speculation about a matter that is not dispositive.
In any event, it is not apparent why - which is to say that Mr Gogulwar has not explained that - a directive that is lawful and reasonable might be rendered otherwise because of differences in the way that an employer has earlier treated its employees in other contexts. For obvious reasons, that is territory into which it is unnecessary that I should venture.
There was, perhaps, an additional element to Mr Gogulwar's fourth refined ground of appeal: namely, that the primary judge's reasoning is inadequate in that it fails to resolve what he advanced about his being denied access to leave and the speed with which he was progressed through a disciplinary process. The adequacy of her Honour's reasoning is addressed more specifically below in relation to a different appeal ground. For present purposes, it suffices to say that there was no need for her Honour to resolve anything on those fronts. The question that she was called upon to resolve was whether or not anything had been done to Mr Gogulwar for a reason or reasons that pt 3-1 of the FW Act proscribes. Although not irrelevant to that question, the points that Mr Gogulwar advanced about his access to leave and the speed with which his employment was terminated were not dispositive and it was not necessary that her Honour should resolve them (even assuming that it can be said that she didn't). Her Honour's reasons for concluding that no action had been taken against Mr Gogulwar for a reason or reasons that pt 3-1 of the FW Act proscribes are orthodox and not attended by the inadequacy that is alleged.
Refined ground 4 of Mr Gogulwar's appeal is not made good.

[100]

Presently, Mr Gogulwar submits that, by failing to resolve what he had submitted about the respondent's obligations to consult and the exemptions for which relevant public health orders provided, the primary judge's reasoning "...prevents meaningful appellate review and constitutes jurisdictional error".
Respectfully, the reference to jurisdictional error can be put to one side. The court presently is not concerned with the legality with which the primary judge's jurisdiction was exercised; rather and more simply, what arises now is the less exacting question of whether her Honour's conclusions are attended by legal, factual or discretionary error.
The significance of the respondent's obligations to consult about changes within its operation (and/or about the introduction of measures related to the Victorian Government's public health directives) is limited to whether the directions that were given to Mr Gogulwar during the COVID-19 pandemic were lawful and reasonable. Likewise limited are the exemptions that were built into those public health orders.
As I have noted, it was not necessary that the primary judge resolve whether or not the directions that were given to Mr Gogulwar were apt to be described as lawful and reasonable. Her failure to do so - or to attend to doing so by reference to the submissions that Mr Gogulwar advanced about the respondent's consultation obligations and the exemptions that were built into relevant public health orders - is of no moment. Neither issue was dispositive of the central question that her Honour was required to answer: namely, why did the respondent engage in the conduct in which it engaged against Mr Gogulwar? Her Honour was not obliged to address, in her reasons, every submission and every aspect of the evidence that was before her; and her failure to do so cannot be impugned as an error of law that warrants appellate intervention.
Mr Gogulwar attributed a related, but separate, deficiency to the reasons of the primary judge. It was put succinctly in his written submissions in reply:

[102]

The competing evidence to which Mr Gogulwar refers is identified in paragraphs from the Primary Judgment that have already been replicated: above, [8]. The primary judge weighed that evidence as follows (Primary Judgment, [120]-[121]):
1. I prefer the evidence of the Company's managers that none of them were aware of the Applicant's WorkSafe complaint until after the Applicant's dismissal when WorkSafe attended their Site. The WorkSafe complaint was made directly to a third party regulator, via the WorkSafe website. The Applicant's evidence as to whether and when he notified the Company of having made the WorkSafe complaint was diluted during these proceedings - from an email sent during the 15 October 2021 meeting (which was never produced to the Court) to a mention during that meeting and/or around that time. It may be accepted that the Applicant traversed part of the subject matter of the WorkSafe complaint on or around 15 October 2021, at least with Mr Ramamurthi who accepted they had discussed the general obligation to consult under safety legislation. But that is not the same thing as notifying the Company or any of its managers of the Worksafe complaint itself and falls well short of countering the Company managers' evidence about their lack of knowledge. In the absence of a direct notification by the Applicant, it is unsurprising that the Company did not learn of the WorkSafe complaint until a later date when it was eventually assessed by WorkSafe, at the earliest on 24 March 2022 when Mr Ramamurthi was interviewed...
2. The decision makers in relation to the decision to dismiss the Applicant were Mr Dorgan and Mr Lewis. As I have found that the Company's decision makers and the other managers closely involved in informing them about the management of the Applicant (Mr Rae and Mr Ramamurthi) were not notified and were unaware of the WorkSafe complaint prior to the Applicant's dismissal, it follows that the fact of the WorkSafe complaint was not and could not have been an actuating reason for the Applicant's dismissal.

In evaluating whether there is appealable error in relation to a finding of fact, the authorities distinguish between cases where findings depend upon some benefit enjoyed by the trial judge that is not available to an appellate court, and other cases, such as those where the impugned findings are inferences drawn from uncontroverted facts. Findings that are the product of some benefit enjoyed by a trial judge may include findings of secondary facts that are based on a combination of impressions and other inferences from primary facts: Lee v Lee at [55], citing Kakavas v Crown Melbourne Ltd (2013)250 CLR 392 at [144], and Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [42], which in turn cited Louth v Diprose [1992] HCA 61; (2019) 175 CLR 621 at 639-641 (Dawson, Gaudron and McHugh JJ). The advantages that a trial judge may enjoy include those "that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole": Fox v Percy at [23]. See also, Branir at [24], [28] and [29]. The advantages may include the opportunity to assess the testimony of witnesses. The value and importance of having seen and heard witnesses will vary according to the class of case, and the individual case in question: Watt or Thomas v Thomas [1947] AC 484 at 488, cited in Paterson v Paterson at 224, and Devries at 480. The disadvantages in which an appellate court is placed "may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole": CSR at [17] (Kirby J, Gleeson CJ agreeing). "The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error": SZVFW at [33] (Gageler J). On the other hand, there may be circumstances where the capacity for appellate synthesis and perspective places the appellate court in an advantageous position over the trial judge: Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187 at [3] (Allsop P). In this case, which turns largely on the inferences that arise from the documentary evidence, we have had the benefit of careful consideration of that evidence: cf, Earthline Constructions at [90] (Kirby J).

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Cases Cited (31)