Griffin and others v Health Secretary; Thorncraft and others v Secretary of the Department of Education

Background

1. A common theme in each of the applications is that the applicants were dismissed for failing to comply with a directive from their employer to become double vaccinated against the COVID-19 virus by a certain date last year or to provide evidence of a medical exemption. With respect to a number of the applications, there was also an issue as to whether the application had been filed outside the 21 day time limit from the date of dismissal (s 85 Industrial Relations Act 1996). This issue is not the subject of consideration in this decision.
2. Much of the debate in the proceedings centred on the impact of public health orders made by the Minister for Health ("Health Minister") pursuant to the Public Health Act 2010 and of determinations made by the Health Secretary and Education Secretary on the Commission's power to grant relief in unfair dismissal proceedings.

Health Orders and Determination

1. On 26 August 2021, the Health Minister, pursuant to s 7 of the Public Health Act, made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 ("First Health Order"). Relevant parts of the First Health Order are set out below: Part 1 Preliminary 1 Name of Order This Order is the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021. 2 Definitions (1) In this Order- … health care worker means each of the following- (a) a person who does work, including as a member of staff of the NSW Health Service, for any of the following- (i) a public health organisation within the meaning of the Health Services Act 1997, (ii) the Health Administration Corporation, (iii) the Ambulance Service of NSW, (b) a registered paramedic who does work involving transporting, or assessing whether to transport, persons to or from a hospital or public health facility, including any treatment incidental to the work, (c) a member of staff of the Ministry of Health. (d) a person who does work at a private health facility, (e) another person, or a person belonging to a class of persons, who does work specified by the Chief Health Officer as the work of a health care worker for this Order in a notice published on the website of NSW Health. health practitioner means a natural person who provides a health service within the meaning of the Health Care Complaints Act 1993, whether or not the person is registered under the Health Practitioner Regulation National Law (NSW). medical contraindication certificate for a health care worker means a certificate issued by a medical practitioner- (a) in a form approved by the Chief Health Officer, and (b) certifying that because of a specified medical contraindication, the worker to whom the certificate has been issued cannot have a COVID-19 vaccine. … responsible person for a health care worker means- (a) the person who employs or engages the worker to work as a health care worker, and (b) a person who exercises employer functions for the person who employs the worker to work as a health care worker, and Example-The Government Sector Employment Act 2013 makes provision for particular persons to exercise employer functions for the Government of New South Wales in relation to persons employed by the Government. (c) if the worker is a student on a student placement to do work as a health care worker-the supervisor of the student, and (d) if the worker is or has entered premises, other than a place of residence, to do work as a health care worker-the occupier of the premises. the Act means the Public Health Act 2010. vaccination evidence for a health care worker means evidence from the Australian Immunisation Register kept under the Australian Immunisation Register Act 2015 of the Commonwealth that the worker has had 1 or more doses of a COVID-19 vaccine. Example- An online immunisation history statement or COVID-19 digital certificate from the Australian Immunisation Register. … Part 2 Directions concerning vaccination of health care workers 4 Directions of Minister for health care workers to be vaccinated (1) The Minister directs that a health care worker must not do work as a health care worker unless- (a) if the work is done on or after 30 September but before 30 November 2021- the worker has received at least 1 dose of a COVID-19 vaccine, or (b) if the work is done on or after 30 November 2021-the worker has received at least 2 doses of a COVID-19 vaccine. (2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker. (3) Subclauses (1) and (2) do not apply to- (a) a health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak. 5 Direction of Minister for responsible persons for health care workers The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause. Part 3 Miscellaneous 6 Exemptions (1) Clause 4 does not apply to a health care worker who- (a) is unable, due to a medical contraindication, to receive a COVID-19 vaccine, and (b) presents a medical contraindication certificate for the worker to a responsible person for the worker. (2) The Minister may, in writing and subject to conditions the Minister considers appropriate, exempt a person or class of persons from the operation of this Order if the Minister is satisfied it is necessary to protect the health and well-being of persons.
2. On 22 October 2021, the Health Minister made a further public health order ("Second Health Order"), the relevant parts of which are set out below: Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 … Part 2 Vaccination of health care workers 4 Introduction This Part sets out the directions of the Minister about the vaccination of health care workers. 5 Health care workers not to work unvaccinated (1) A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVJD-19 vaccine. (2) A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine. … (4) A health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker.
3. On 23 December 2021, the Health Minister made a further public health order ("Third Health Order"), the object of which was to repeal and remake, with some minor changes, the Second Health Order. Relevant parts of the Third Health Order are set out below: Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 … Part 2 Vaccination of health care workers-stage 1 4 Introduction (1) This Part sets out stage 1 of the Minister's directions about the vaccination of health care workers. 5 Stage 1 health care workers not to work unvaccinated (1) A stage 1 health care worker must not do work as a health care worker unless the worker has received at least 2 doses of a COVID-19 vaccine. (2) Subclause (1) does not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract for the provision of services if- (a) the work does not involve the provision of a health service within the meaning of the Health Services Act 1997, and (b) the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health. (3) To remove any doubt. subclause (2) does not apply to work done under a contract of employment. (4) A stage 1 health care worker must, if required to do so by an authorised person, provide vaccination evidence for the worker. (5) Subclauses (1) and (4) do not apply to- (a) health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency. Example- A fire, flooding or a gas leak. ... Part 3 Vaccination of health care workers-stage 2 7 Introduction This Part sets out stage 2 of the Minister's directions about the vaccination of health care workers. 8 Stage 2 health care workers not to work unvaccinated (1) A stage 2 health care worker must not do work as a health care worker on or after­ (a) 31 January 2022 unless the worker has received at least 1 dose of a COVID-19 vaccine, and (b) 28 February 2022 unless the worker has received at least 2 doses of a COVID-19 vaccine. Note- A person who is a stage 1 health care worker is not a stage 2 health care worker. (2) A stage 2 health care worker must, if required to do so by an authorised person on or after 31 January 2022, provide vaccination evidence for the worker. (3) Subclauses (1) and (2) do not apply to- (a) a health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency. Example- A fire, flooding or a gas leak. … Schedule 1 Dictionary … health care worker means- (a) a stage 1 health care worker, or (b) a stage 2 health care worker. … stage 1 health care worker means each of the following- (a) a person who does work, including as a member of staff of the NSW Health Service, for any of the following- (i) a public health organisation, (ii) the Health Administration Corporation, (iii) the Ambulance Service of NSW, (b) a registered paramedic who does work involving transporting, or assessing whether to transport, persons to or from a hospital or public health facility, including any treatment incidental to the work, (c) a member of staff of the Ministry of Health, (d) a person who does work at a private health facility, (e) a person who does work for an organisation pursuant to either of the following in accordance with NSW Health Policy Directive PD2019_013 Administration of NSW Health Grant Funding for Non-Government Organisations- (i) a Ministerially approved grant under the Non-Government Organisations Program, (ii) a Program Grant, if the work involves the provision of a health service within the meaning of the Health Services Act 1997, … (f) another person, or a person belonging to a class of persons, who does work specified by the Chief Health Officer as the work of a stage 1 health care worker for this Order in a notice published on the website of NSW Health. stage 2 health care worker means each of the following, but does not include a person who is a stage 1 health care worker- (a) a person employed in a Public Service executive agency related to the Ministry of Health. Note- See the Government Sector Employment Act 2013, Schedule 1, Part 2. (b) a person employed in the Health Care Complaints Commission Staff Agency, (c) a person appointed by the Governor or the Minister to an office under the following­ (i) the Cancer Institute Act 2003, (ii) the Health Administration Act 1982, (iii) the Health Care Complaints Act 1993, (iv) the Health Practitioner Regulation National Law (NSW), (v) the Health Services Act 1987, (vi) the Mental Health Act 2007, (vii) the Mental Health Commission Act 2012, (d) a health practitioner within the meaning of the Health Practitioner Regulation National Law (NSW), (e) a person providing a health service subject to the code of conduct made under the Act, section 100. Note 1- The code of conduct is in the Public Health Regulation 2012, Schedule 3. Note 2- The code of conduct applies to health practitioners who are not registered under the Health Practitioner Regulation National Law (NSW), including de-registered health practitioners, and registered health practitioners who provide health services that are unrelated to their registration. (f) a person who does work in connection with the provision of a health service by a person referred to in paragraph (d) or (e) on the premises at which the person referred to in paragraph (d) or (e) provides the health service, Example- A receptionist at a doctor's surgery. (g) another person, or a person belonging to a class of persons, who does work specified by the Chief Health Officer as the work of a stage 2 health care worker for this Order in a notice published on the website of NSW Health. … work includes- (a) work done under an employment contract or a contract for services, including work done by a visiting practitioner within the meaning of the Health Services Act 1997, and (b) work done as a volunteer or by or for a charitable organisation, and (c) work done by a student on a student placement, and (d) work done on a temporary basis, including while acting in or filling an office or other role because of a vacancy or absence. …
4. On 21 March 2022, the Health Minister the made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 ("Fourth Health Order") the object of which was to repeal and remake, with some minor changes, the Third Health Order.
5. On 12 November 2021, the Health Secretary made the following determination pursuant to ss 116A(1) of the Health Services Act 1997 ("Health Determination"): DETERMINATION No 33 of 2021. In accordance with the provisions of section 116A(1) of the Health Services Act 1997 I, Elizabeth Koff, Secretary, Ministry of Health, hereby fix as a condition of employment of all persons employed in the NSW Health Service under Part 1 of Chapter 9 of the Health Services Act 1997 (NSW Health Service Employees), that to be employed, or remain employed: (1) a NSW Health Service Employee, other than a NSW Health Service Employee to whom paragraph (2) below applies, must have received: (a) at least 1 dose of a COVID-19 vaccine as at the date of this determination; and (b) at least 2 doses of a COVID-19 vaccine on and from 30 November 2021. (2) A NSW Health Service Employee who works in an residential aged care facility operated by NSW Health on or after the date of this determination must have received at least 2 doses of a COVID-19 vaccine. (3) A NSW Health Service Employee must, on request by his or her employer, produce vaccination evidence. This determination does not apply to a NSW Health Service Employee who: (a) is unable, due to a medical contraindication, to be vaccinated against COVID-19, and (b) presents to his or her employer a medical contraindication certificate issued to the NSW Health Service Employee. In this determination, the following terms are defined as follows: "approved COVID-19 vaccine" means a vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use in Australia as a vaccine against COVID-19. "COVID-19 vaccine" means: (a) an approved COVID-19 vaccine, or (b) a vaccine, other than an approved COVlD-19 vaccine, recognised by the Therapeutic Goods Administration of the Commonwealth as an appropriate vaccine against COVID-19 for incoming travellers to Australia. "employer" includes a person who exercises employer functions for the person who employs a NSW Health Service Employee. "medical contraindication certificate" means a certificate issued by a medical practitioner: (a) in a form approved by the Chief Health Officer, and (b) certifying that because of a specified medical contraindication, the NSW Health Service Employee cannot have any approved COVID-19 vaccine available in New South Wales. "residential aged care facility" means a facility at which the following services are provided to a person in relation to whom a residential care subsidy or flexible care subsidy is payable under the Aged Care Act 1997 (Cth): (a) accommodation, (b) personal care or nursing care. "vaccination evidence" means evidence from the Australian Immunisation Register kept under the Australian Immunisation Register Act 2015 (Cth) that the NSW Health Service Employee has had 1 or more doses of a COVID-19 vaccine. This determination remains in force until rescinded.

Education Orders, Determination and Section 50 of the Teaching Service Act 1980

1. On 23 September 2021, the Health Minister, pursuant to s 7 of the Public Health Act, made Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 ("First Education Order"). Relevant parts of the First Education Order are set out below: 1 Name of Order This Order is the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021. 2 Definitions (1) In this Order- … education and care worker means a person who carries out relevant work. government school has the same meaning as in the Education Act 1990. medical contraindication certificate for an education and care worker means a certificate issued by a medical practitioner- (a) in a form approved by the Chief Health Officer, and (b) certifying that, because of a specified medical contraindication, the worker cannot have a COVID-19 vaccine. … relevant work means the following work- (a) work at a government school or non-government school, … 4 Education and care workers must be vaccinated (1) The Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has- (a) had 2 doses of a COVID-19 vaccine. or (b) been issued with a medical contraindication certificate. (2) The Minister directs that an education and care worker must provide the worker's vaccination evidence if requested by- (a) a responsible person, or (b) a person authorised by a responsible person. (3) The Minister directs that each responsible person for an education and care worker must take all reasonable steps to ensure that the education and care worker complies with the directions of this clause. (4) This clause does not apply to an education and care worker who carries out relevant work in an emergency.
2. The First Education Order was subsequently amended in a number of ways which are not presently relevant. Pursuant to ss 7(5) of the Public Health Act the First Education Order was due to expire on 22 December 2021. On 15 December 2021, the Health Minister made Public Health (COVID-19 Vaccination of Education and Care Workers) Order (No 2) 2021 ("Second Education Order"), the object of which was to repeal and remake, with minor changes, the First Education Order.
3. Clause 5 of the Second Education Order, which commenced on 17 December 2021, contained the following: 5 Education and care workers must be vaccinated (1) The Minister directs that an education and care worker must not carry out relevant work unless the worker has- (a) had 2 doses of a COVID-19 vaccine, or (b) been issued with a medical contraindication certificate, or (c) a medical contraindication recorded on the Australian Immunisation Register that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales.
4. It will be seen that the reference to the date, 8 November 2021, which appeared in clause 4 of the First Education Order, had been deleted and the obligation on education and care workers, including school teachers, to be double vaccinated was ongoing.
5. On 7 January 2022, the NSW Government announced that booster shots would become part of the vaccination requirement for any workforce where mandatory vaccinations are required.
6. On 10 March 2022, the Health Minister made Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2022 ("Third Education Order"), the object of which was to repeal and replace, with minor changes the Second Education Order.
7. On 18 October 2021, the Education Secretary made a determination pursuant to s 13 of the Teaching Service Act 1980 which was published as "Determination 1 of 2021 - COVID-19 Vaccination Evidence" ("Education Determination"). The Education Determination contained the following: 1 Purpose 1.1 The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID- 19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department. 2 Application 2.1 This Determination will apply to all employees of the Department employed in the Teaching Service. … 4 Scope 4.1 It is a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work, either: (a) vaccination evidence; or (b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate. 4.2 All employees who work, or will be required to work, on a Department site to support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021. 4.3 All other employees who attend, or ordinarily attend, a Department school for their work will be required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 8 November 2021. 4.5 All new employees are required to provide their vaccination evidence or their medical contraindication certificate prior to commencing work with the Department. 5 Date of Effect This Determination has effect from the date on which the Determination is made by the Secretary. 6 Review This Determination will be reviewed by the Secretary before the last day of Term 2, 2022, Friday 1 July 2022.
8. Section 50 of the Teaching Service Act is in the following terms: 50 Temporary employees (1) The Secretary may employ on a temporary basis: (a) persons who are accredited under the Teacher Accreditation Act 2004 to carry out work in the Teaching Service, or (b) persons who have, in the opinion of the Secretary, the appropriate qualifications to carry out work in the Teaching Service. (2) A person employed under this section may be employed on a full-time, casual or part-time basis. (3) A temporary employee is a member of, but does not hold a position in, the Teaching Service. (4) (Repealed) (5) A person employed under this section: (a) may be employed for a period or periods of up to 3 years, and (b) may be dismissed at any time. (6) The Secretary may not terminate the employment of a temporary employee for reasons other than for misconduct unless the employee: (a) is given at least 4 weeks notice of the proposed termination, or (b) is paid, at or before the termination, an amount equal to 4 weeks pay. (7) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuation entitlements.

The public education matters

1. The first cohort of applications, 20 public education matters, was listed before me for mention on 20 December 2021. A list of these matters appears at Schedule C hereto. On that occasion, I stated: The concern I have is that there is in existence, as I understand it, a public health order which would prevent this Commission reinstating any of the applicants to their positions of teacher. And I think that's an issue that ought to be resolved one way or another before the matters proceed either to conciliation or to arbitration.
2. Ms Byrnes of counsel, who appeared for the Education Secretary, confirmed that her client would be taking the point that Public Health Orders would prevent the Commission from ordering reinstatement of unvaccinated teachers and foreshadowed that "there may be further jurisdictional objections as well". A timetable for the filing and serving of a written submission outlining all of those objections was agreed with Mr Dryley-Collins who appeared for the applicants and the applications were set down for hearing before me on 4 March 2022.
3. On 24 December 2021 and 4 February 2022, the Education Secretary filed Notices of Motion seeking orders that the Commission dismiss, or decline to exercise its jurisdiction in relation to the 20 (later expanded to 23) public education matters referred to above. The grounds and reasons in support of the orders sought by the Education Secretary stated that the applicants were temporary employees and that ss 50(7) of the Teaching Service Act or ss 21(6) of the Education (School Administrative and Support Staff) Act 1987 operated as a constraint on the Commission's powers to award remedies under s 89 of the Industrial Relations Act.
4. Written submissions were filed in support of the respective positions of the parties. Ultimately, as stated at [2] above and discussed further below, all of the 20 matters that were before the Commission on 20 December 2021, plus the three additional matters, were discontinued prior to the day of the hearing, 4 March 2022.
5. An unfair dismissal application was filed by Mrs Lauren Thorncraft on 9 November 2021 (File Number: 2021/319573). Mrs Thorncraft, who had been employed as a temporary part-time Primary School Teacher at Cronulla Public School, had her temporary teacher contract terminated with effect from 4 November 2021 following her failure to provide positive confirmation of her COVID-19 vaccination status. In the employer's reply, which was filed on 25 November 2021, the Education Secretary raised the applicant's failure to comply with the First Education Order as well as ss 50(6) of the Teaching Service Act, as a basis for dismissing the application. Following an unsuccessful conciliation conference before another member of the Commission on 5 December 2021, the matter was ultimately reallocated by the Chief Commissioner to me on the basis that it raised some of the same issues that had arisen in other applications previously allocated to me.
6. The matter was listed for mention before me on 14 January 2022. By that time, the Education Secretary had, on 14 December 2021, filed a Notice of Motion seeking an order that the Commission decline to exercise its jurisdiction in the matter. The applicant had, on 20 December 2021, filed extensive written submissions and affidavit material in response to the motion. I decided that I would hear the jurisdictional objections to Mrs Thorncraft's application on 4 March 2022, the same date on which I had listed the other public education matters referred to above.
7. In addition, unfair dismissal applications by Mr Colin Dunque, former temporary full-time High School Teacher, and Mr Jamie Johnson, former Asset Services Officer with the Department of Education, were also listed for hearing before me on 4 March 2022.

The public health matters

1. During January and February 2022, a number of unfair dismissal applications were filed by former local health district employees.
2. A number of these matters, including applications by Mr Knight, Miss Matthews, Ms Thomson, Ms O'Brien and Ms Tsamoglou, were listed for mention on 20 January 2022. On that occasion, I raised with the parties that I had formed the view that a threshold issue needed to be resolved before the applications could usefully proceed to conciliation and/or arbitration. That issue concerned a number of Public Health Orders made by the Health Minister pursuant to the Public Health Act and the Health Determination made by the Health Secretary pursuant to s 116A of Health Services Act.
3. The following directions were made in each of the public health matters that were then before the Commission: Directions 1. Respondent to file and serve an outline of submissions and any other documents in support of legal impact of the 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 and the Health Secretary's determination 33 of 2021 by close of business 4/2/22. 2. Applicants to file and serve an outline of submissions and any other documents in support of their applications by close of business 21/2/22. 3. Respondent to file and serve reply by close of business 25/2/22. 4. Matter listed for hearing via AVL at 10am on 4 March 2022.
4. A further number of public health matters were listed for mention on various dates in January and February 2022 and similar directions were made. These included applications by Ms White, Mr Christofi, Miss Griffin, Miss Pirie and Ms Forbes. These matters were also stood over for hearing and determination of the threshold issues on 4 March 2022.

Determination

1. The applications were listed for mention before me on 1 March 2022 in order to ensure that the matters were ready to be heard on 4 March 2022. At that mention, Mr Dryley-Collins, who appeared for a number of applicants in the public education matters, announced that his clients, apart from Mr Johnson, were withdrawing their applications. He stated: Thank you, Commissioner. So, in regards to the teachers that were ... temporary teachers for the purposes of section 50 of the Teaching Services Act, we have been in contact with all of those applicants and have received instructions to discontinue their matters. As the respondent's representative has mentioned, that does leave one Department of Education person as part of that initial application who wasn't a temporary teacher, but those other matters, which I understand are subject of that separate application, those matters will be withdrawn.
2. As a result of this development, of the public education matters that were to be heard on 4 March 2022, only the applications of Mrs Thorncraft, Mr Dunque and Mr Johnson remained in the Commission's list to be heard and determined. However, Mr Dryley-Collins remained the legal representative of a number of applicants in the public health matters.
3. The hearing of the remaining matters proceeded on 4 March 2022. In the exercise of the Commission's powers of interpretation pursuant to s 175 of the Industrial Relations Act, the questions to be determined concerning the interpretation, application or operation of relevant laws or instruments, are those summarised at [1] above.
4. I note that, whilst a considerable bulk of the submissions by some parties went to the validity and/or legality and/or enforceability of the Public Health Orders and Determinations set out at [10]-[21] above, this Commission is not the forum in which to agitate such matters. These instruments will be accepted in this jurisdiction as valid and enforceable pieces of delegated legislation unless and until found to be otherwise in another place.
5. Further, some of the submissions of the parties canvassed issues of fairness or unfairness of the dismissals, raising issues such as lack of consultation with workers said to be required pursuant to s 47 of the Work Health and Safety Act 2011. This decision is not concerned with such matters, but only with the question of the availability, or unavailability, of remedies pursuant to s 89 of the Industrial Relations Act to such of the applicants who may ultimately be able to satisfy the onus that they bear of demonstrating that their dismissal was harsh, unjust or unreasonable.

Case for the Health Secretary

1. In written submissions filed on 4 February 2022, the Health Secretary put the following (footnotes omitted): OUTLINE OF RESPONDENT'S SUBMISSIONS BACKGROUND 1. These submissions are made pursuant to the Commission's directions for the Respondent to file and serve material on a 'threshold question' being 'the legal impact' of: a. Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PH Order 1); b. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (PH Order 2); and c. Health Secretary's Determination 33 of 2021 (Determination). 2. The requirements of PH Order 1, PH Order 2 and the Determination are referred to collectively as 'the Vaccination Requirements'. 3. These submissions are relied on by the Respondent in respect of each of the following unfair dismissal applications ('the Applications'), in accordance with directions made in each of the individual proceedings... 4. It is understood that the Commission is seeking to determine the threshold question as a preliminary issue since any conclusion reached or findings made by the Commission can be expected to affect the outcome of individual Applications and will, at least, narrow the issues in dispute and/or the scope of the Applications. Of course, the outcome of the threshold question will not of itself determine those Applications. For example, it will not address any grounds that may be relied upon in respect of procedural fairness or other factors relevant to s 88 of the Industrial Relations Act 1996 (NSW) (IR Act). THE RESPONDENT'S POSITION 5. In broad terms, and for the reasons set out below, the Respondent submits the Vaccination Requirements impact the Applications in the following ways: a. The Respondent cannot derogate from the Vaccination Requirements; b. Non-compliance with the Vaccination Requirements is a valid reason for dismissal - indeed, the Respondent, as a matter of law, was required by the Determination to dismiss the Applicants; c. The Vaccination Requirements render reinstatement or reemployment of a person who is non compliant, impracticable, for the purposes of s 89 of the IR Act. PUBLIC HEALTH ORDERS 6. The PH Orders 1 and 2 were made by the Minister for Heath under s 7 of the Public Health Act 2010 (NSW) (PH Act). 7. PH Order 1 applied from 26 August 2021 to 22 October 2021. PH Order 2 applied from 22 October 2021 to 23 December 2021. Each of the Applicants had their employment terminated during the time when PH Order 2 was in effect. On 23 December 2021 Public Health (Covid-19 Vaccination of Health Care Workers) Order (No. 3) 2021 took effect (PH Order 3). 8. The PH Orders apply as a matter of law and failure to comply with them is an offence under s 10 of the PH Act. 9. The validity of the PH Order 1 and PH Order 2 has been affirmed by the Supreme Court of NSW in Larter v Hazzard (No. 2) [2021] NSWSC 1451. 10. For the purposes of these proceedings and determination of the 'threshold question', the Commission can accept the PH Orders apply and need not enquire into the validity or application of same. That is to say that, unless and until the PH Orders are invalidated by a Court of competent jurisdiction, the legal standing of the PH Orders is not a matter for this Commission. 11. The PH Orders have, since 26 August 2021, prohibited 'health care workers' from doing work as a 'health care worker' unless they have received doses of the COVID-19 vaccine in accordance with the dates specified in same. Namely: a. 30 September 2021 for the first dose; and b. 30 November 2021 for the second dose. 12. The PH Orders provided for exemption from the vaccination requirement if a health care worker is unable, due to a medical contraindication, to receive a COVID-19 vaccine and provides a medical contraindication certificate to a 'responsible person'. 13. Accordingly, any Applicants to whom the PH Orders applied and who had not complied with the COVID-19 vaccine requirements set out in the PH Orders (which is dealt with below), were unable to lawfully perform any work for the Respondent because they have not complied with their obligations as a 'health care worker' under the PH Order and have been unable to do so since 30 September 2021 (when the first vaccine dose was due). 14. Under the PH Orders, officers of the Respondent's agencies who exercise employer functions under delegation from the Secretary, were required to take reasonable steps to ensure 'health care workers' comply with the PH Order. The Respondent agencies as a matter of law are not permitted to knowingly allow any of the Applicants to work as a 'health care worker' under a PH Order, contrary to its terms. 15. The prohibition on the lawful performance of work meant that, while theoretically 'health care workers' could remain employed by the Respondent under the PH Orders, they were prohibited from actually performing any work. 16. The Respondent has no discretion to derogate from the terms of the PH Orders. DETERMINATION 17. In addition to the PH Orders, the Applicants' employment was also subject to the Determination which was made on 12 November 2021 under s 116A of the Health Services Act 1997 (NSW) (HS Act). 18. The Secretary has the power, under s 116A(1) of the HS Act to: fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law. 19. This is an express, statutory power to set conditions of employment. 20. Exercising that power the Secretary made the Determination and by it, fixed, as a mandatory condition of employment of NSW Health Service employees, that to be employed, or remain employed: (1) the employee must have received: (a) at least 1 dose of a COVID-19 vaccine as at the date of the Determination; and (b) east (sic at least) 2 doses of a COVID-19 vaccine on and from 30 November 2021. (2) W (sic A NSW) Health Service employee who works in an residential aged care facility operated by NSW Health on or after the date of the Determination must have received at least 2 doses of a COVID-19 vaccine. (3) A NSW Health Service employee must, on request by his or her employer, produce vaccination evidence. 21. Like the PH Orders, the Determination provides an exemption from the Vaccination Requirement if an employee cannot be vaccinated due to medical contraindication and provides evidence of this by way of a medical contraindication certificate. 22. The Determination applies equally to all employees and prospective employees within the NSW Health Service from 12 November 2021, onwards. 23. For the purposes of these proceedings and the 'threshold question', the Commission can accept the Determination applies and need not enquire into the validity or application of same. That is to say that, unless and until the Determination is invalidated by a Court of competent jurisdiction, the legal standing of the Determination is not a matter for this Commission: see Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92 at [33]. 24. The important distinction between the PH Orders and the Determination is that, whilst the PH Orders 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). 25. Accordingly, any Applicants to whom the Determination applied and who did not satisfy the requirements of the Determination (discussed further below) were not and are not able to be employed or remain employed for the Respondent because they do not meet the mandatory condition of employment. 26. A further distinction is that the Determination has ongoing effect, in contrast to the PH Orders which have effect for a period of time, unless renewed. ASSUMED FACTS 27. For the purposes of these submissions, the Respondent invites the Commission to assume a number of facts. These facts can be formally proven in the unlikely event they are put in issue in the individual proceedings. However, for the purposes of threshold question under consideration, the Respondent invites the Commission at this stage to proceed on the basis of the following assumptions: a. The Applicants were employed by the Government of New South Wales in the service of the Crown as part of the New South Wales Health Service (NSW Health Service) (see ss 115 and 116 of the HS Act); b. Each of the Applicants had their employment terminated by the Respondent; c. The terminations occurred during the time PH Order 2 was in effect and after the Determination was made; d. The various agencies of the Respondent subject to these Applications were and are 'public health organisations' pursuant to s 7 of the HS Act; e. The Applicants worked in the provision of a 'health service' pursuant to the HS Act; f. The Applicants were 'health care workers' within the meaning of PH Order 1 and PH Order 2, and the PH Orders applied to them; g. The Determination applied to the employment of the Applicants; h. The Applicants did not, prior to their termination, and still do not meet the Vaccination Requirements; i. The Applicants did not, prior to their termination, and do not have a medical contraindication or otherwise qualify for an exemption for the purposes of PH Order 1, PH Order 2 and/or the Determination; j. Non-compliance with the Vaccination Requirements and the effect of the Determination was the reason for the dismissal - and no other reason is relevant for determination of the threshold question; and k. The Applicants were employed in positions that, if they were still employed, would have made them 'stage 1 health care workers' within the meaning of PH Order 3. NON-COMPLIANCE AS REASON FOR DISMISSAL 28. The Applicants were dismissed from their employment because they failed to comply with the Vaccination Requirements. Put simply, they: a. Could not and cannot lawfully work as a 'health care worker' under the PH Orders: and b. Did not meet the mandatory condition of their employment as fixed by the Determination. 29. Two legal concepts arise as a consequence of the above, namely: a. Issue of 'capacity' to perform work, and indeed be employed by the Respondent; and b. Frustration of contract. Capacity 30. 'Capacity' is the employee's ability to do the job as required by the employer: Walton v Mermaid Dry Cleaners Pty Limited (1996) 142 ALR 681 at p. 684. 31. It is well established that an employee's capacity to do their job is not limited to questions of physical or mental capacity or skill. In DA v Baptist Care SA [2020] FWCFB 6046 (Baptist Care Case) the Full Bench of the Fair Work Commission accepted the employer had a valid reason to dismiss the employee because it would have been unlawful for the employer to continue to employ the applicant in a children's residential facility given the applicant's failure to satisfy the statutory psychometric testing requirements under the Children and Young People (Safety) Act 2017 (SA). Although commenting on s 387(a) of the Fair Work Act 2009 (Cth) the comments of the Full Bench on 'capacity' are useful in the present circumstances: [28] ... The concept of 'capacity' in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, ii is likely that there will be a valid reason for dismissal based on the employee's capacity. 32. In the Baptist Care Case, the Full Bench also had cause to consider the effect legislative changes might have on employees and their capacity for their chosen employment: [30] The capacity for this statutory regime to visit unfairness upon employees is obvious. The process does not take into account the employee's history of working with children and, as in DA's case, an unblemished history of working with children appropriately will be of no account. As is recognised in the protocol agreed between the Department and PsychCheck, an assessment of unsuitability does not necessarily mean that the employee would engage in unacceptable behaviour or harm children. The employee has no control over or say in who conducts the assessment and, at the time of DA's dismissal, there was only one approved provider of assessments for the purpose of the legislative regime. There was at the time no requirement to give reasons for an assessment of unsuitability, and there is no capacity to obtain independent review of the assessment. Thus, as in DA's case, a process which to the employee may appear to be arbitrary and lacking in transparency may lead to an employee with a good record of working with children losing their career. [31] However, the capacity of the legislative scheme to cause unfair outcomes for employees is not something which can render a dismissal caused by the scheme to be unfair. The legislative scheme reflects a policy choice by the South Australian legislature to prioritise a precautionary and preventative approach to the care and safety of children over the interests of employees working with children. Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it. (emphasis added) 33. As was the case in the Baptist Care Case, the IR Act does not provide an avenue to revisit the policy behind the legislative scheme of the PH Orders and the Determination 34. Whilst the PH Orders themselves did not automatically compel the Respondent to terminate the employment of the Applicants, they provided for a staged introduction of the Vaccination Requirements with a view to allowing 'health care workers' reasonable opportunity to comply. This was recognised by the Supreme Court in Larter v Hazzard (No. 2) [2021] NSWSC 1451: [90] It is important in this context to note that the orders make no provision for the termination of the services of workers who are prevented from working by reason of not having been vaccinated, although this was the effect of statements made by the Minister in the course of daily press conferences. The orders are concerned with preventing those who were not vaccinated from working for NSW Health (except in certain limited circumstances). The way the Minister chose to achieve this policy objective was to impose time limits on vaccination and to do so with fair warning so that workers could comply if they were minded to do so. As referred to above, it may be accepted that the effects on the plaintiff of not being vaccinated are grave and, potentially, far-reaching and permanent. However, this is the inevitable consequence of the breadth of the power in s 7, the risk posed by the virus, and the Minister's decision (based on Dr Chant's advice) as to the appropriate way of dealing with the risk. It does not follow from the fact that under s 7(5) an order remains operative for no more than 90 days, that the consequences of an order cannot be permanent, that they may not be extended for a further 90 days, or until the risk against which they are designed to guard has been sufficiently ameliorated. 35. The Respondent relied on the PH Orders to dismiss the Applicants but also on the Determination which came into effect on 12 November 2021. At that point in time, the Respondent was left with no choice but to terminate the employment of the Applicants. The Respondent could not continue to employ the Applicants - in circumstances where they did not comply with the Determination. The Applicants simply did not have capacity to be employed by the Respondent, irrespective of whether they were performing any work or not: see also Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC92 at [50]. Frustration of contract 36. The PH Orders rendered their contracts to work as health care workers impossible to perform. 37. Frustration of a contract, including an employment contract, occurs when an unforeseen and unexpected event prevents the performance of the contract. Whether a contract of employment is frustrated is a question of fact: Tsarkiroglou and Co Ltd v Noblee Thori Gmbh [1962] AC 93. 38. Under the common law doctrine of frustration of contract, a contract automatically comes to an end if a supervening event outside the control of the parties makes the contract impossible to perform, or means that performance would be a thing radically different from that contemplated by the parties when the contract was entered into: see Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 at 159-163. 39. Clearly, a fundamental and essential requirement of the contracts was that the Applicants do work in return for payment. The fact that the PH Orders prevented that work being done meant the performance of the contract was impossible to perform and radically different to that contemplated by the parties amounting to a frustration of the contract. 40. In addition, the Determination - an intervening act of statutory force - prohibited the continuing employment of the Applicants by introducing a mandatory condition of employment which the Applicants did not, as a matter of fact (on the above assume facts), meet. In order for the Respondent to comply with the law, namely the Determination, it was required to terminate the employment of the Applicants, because the contract was impossible to perform, in a practical or theoretical sense: see Melville v De Wolf (1855) 4 E & B 844. 41. The reliance on the doctrine of frustration of contract is a further and separate basis from the issue of capacity, that justified or warranted the dismissal of the Applicants. 42. For avoidance of doubt, the Respondent does not contend - for the purposes of these proceedings - that this event of frustration means that each of the Applicants has not been "dismissed" for the purposes of the IR Act. Rather, in dealing with this Applications, the Respondent accepts that each of the Applicants has been so "dismissed" as each of the Applicants was issued with a letter terminating their employment: see Mahony v White (2016) 262 IR 221; [2016] FCAFC 160 at [18]. 43. In circumstances where the Applicants have failed to comply with the Vaccination Requirements and could not lawfully work (pursuant to the PH Orders) and could not lawfully be employed by the Respondent (pursuant to the Determination), it was not and is not reasonable nor lawful for the Respondent to continue to employ the Applicants. Lawful or reasonable direction 44. It is not necessary for the Commission to consider whether there was a lawful and reasonable direction or whether the Applicants' refused to comply or not with such a direction. No more needs to be found beyond the fact that they did not comply with the Vaccination Requirements: cf Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [64]. REINSTATEMENT AND REDEPLOYMENT 45. If the Commission finds a dismissal is unfair, for the purposes of s 84 of the IR Act, s 89 requires the Commission to consider reinstatement or re-employment, where it is not impracticable to do so. 46. An order for 'reinstatement' under s 89(1) of the IR Act must be to the Applicant's 'former position' but only where that is 'practicable'. A consideration of what is 'impracticable' will include all the relevant circumstances and is something less than 'impossible': Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [34]. 47. The Respondent submits it would be impracticable for the Commission to order reinstatement or re-employment to any Applicant who is and remains non­compliant with: a. the PH Orders; and b. the Determination. 48. The PH Orders prelude any 'health care worker' and 'stage 1 health care workers' (in respect of PH Order 3) from doing work as a 'health care worker' unless the worker has received at least 2 doses of a COVID-19 vaccine. The only exemption is if the person has a medical contraindication. 49. Officers of the Respondent agencies have a duty to take all reasonable steps to ensure compliance. It follows that Respondent agencies could not and cannot knowingly, allow any person to work, contrary to the PH Order. 50. It would be impracticable and indeed, impermissible for the Commission to make any order that, in practical effect, required a person (or persons) to act unlawfully and expose themselves to a penalty under the PH Act. 51. It would be impracticable for the Respondent agencies to be compelled to reinstate or re-employ employees who cannot lawfully do their job (under the PH Orders). 52. The practical effect of this, would be to require Respondent agencies to establish employment relationships with persons who cannot work or contribute to the operation of the NSW Health Service. It is no answer to say that they can be re­employed without being required to work: the High Court has made it plain that an order requiring reinstatement is an order requiring the employer to provide actual work: Blackadder v Ramsey Butchering Se/Vices Pty Ltd (2005) 221 CLR 539. 53. Further, the Determination renders it impermissible to order the Respondent to reinstate or re-employ a person who as a matter of law it cannot employ given the Determination. Even if the Commission had the power to do so, it would not as a matter of discretion make an order that would require the Respondent to contravene a statutory obligation to comply with a Determination. 54. Given that, on the assumed facts, any reinstatement or redeployment would be impractical and contrary to the law (namely the Determination), the Respondent submits that in the event the Commission finds that any Applicant has been unfairly dismissed, and that Applicant remains unvaccinated, the Commission could not, on the assumed facts, order reinstatement or redeployment. CONCLUSION 55. For the reasons set out about, the Respondent invites the Commission to make findings that, on the assumed facts: 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, for the purposes of s 89 of the IR Act.
2. At the hearing on 4 March 2022, Mr Taylor SC, who appeared with Ms Byrnes for the Health Secretary, elaborated upon these written submissions.

Case for the applicants

1. Relevant parts of a written outline of submissions, which was filed on behalf of the applicants represented by Supportah Australia, are set out below (footnotes omitted): Background of Section 84 of the Industrial Relations Act 1996 (NSW) 11. For the purposes of the Industrial Relations Act 1996 (NSW) the Applicants understand that it is common between the parties that: (a) the Applicants are each an 'employee' within the meaning of s 5 of the Industrial Relations Act 1996 (NSW); (b) the Respondent(s) are, for the purposes of the Industrial Relations Act 1996 (NSW), an 'employer' within the meaning of the Dictionary to the Industrial Relations Act 1996 (NSW); (c) pursuant to s 83 of the Industrial Relations Act 1996 (NSW), Part 6 of the Industrial Relations Act 1996 (NSW) applies to each of the Applicants in regards to their employment with the Respondents; so (d) Each Applicant was entitled to make an application for an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW). 12. Section 89 of the Industrial Relations Act 1996 (NSW) provides that, upon determination that a dismissal was unfair, unjust, or unreasonable the Industrial Relations Commission of New South Wales is empowered to make orders including: (a) Reinstatement; (b) Re-employment; (c) Remuneration; (d) Continuity; and (e) Compensation. Summary of the Applicants' Understanding of the Respondents Position 13. The Applicants understand that the position of the Respondent(s) is that there is a lack of Jurisdiction pursuant to s 89 of the Industrial Relations Act 1996 (NSW), with respect to: … (b) the impact of the Public Health Orders on the power of the Commission to make an order for reinstatement. 14. These submissions consequently address: (a) the power for the Industrial Relations Commission of New South Wales (Commission) to order reinstatement pursuant to s89(1) of the Industrial Relations Act 1996 (NSW) with reference to any abrogation of such powers as a result of the: … (iii) Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021; and (iv) Public Health (COVID-19 Vaccination of Health Care Workers) Order (No. 2) 2021; and (v) Public Health (COVID-19 Vaccination of Health Care Workers Order (No. 3) 2021. (b) whether any assessment of unfairness as determined by the Commission should be affected by any willingness on the part of an Applicant or Applicants to receive a COVID-19 vaccination after the date of the termination of their employment. … The Public Health Orders Orders in Force 22. It is not contested that at the time of the dismissal of the Applicant(s), Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was in effect. 23. It is also not contested that at the time of the dismissal of the Applicant(s), Public Health (COVID-19 Vaccination of Health Care Workers) Order (No. 2) 2021 was in effect. 24. These are collectively referred to as The Public Health Orders. 25. The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 and Public Health (COVID-19 Vaccination of Health Care Workers) Order (No. 2) 2021 have been made pursuant to Section 7 of the Public Health Act 2010 (NSW). 26. The objects of the Public Health Act 2010 (NSW) are to: (a) to promote, protect and improve public health; (b) to control the risks to public health; (c) to promote the control of infectious diseases; (d) to prevent the spread of infectious diseases; (e) to recognise the role of local government in protecting public health; and (f) to monitor diseases and conditions affecting public health. 27. It is further stated in the objects of the Public Health Act 2010 (NSW) that 'The protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act. 28. It follows that any Public Health Order made under the Public Health Act 2010 (NSW) is done with these objects in mind. 29. There is no dispute that the Public Health Order is validly made within the power of the New South Wales Minister for Health and Medical Research. … 34. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No. 2) 2021 relevantly states: A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVID-19 vaccine. A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine. 35. The Public Health Orders as published are silent on any requirement to terminate the employment of an Applicant who is not able to complete 'relevant work or 'must not do work'. 36. It is submitted that, with reference to the Public Health Orders and the objects of the Public Health Act 2010 (NSW): (a) Termination of the employment of the Applicant was not required; (b) Termination of the employment of the Applicant was not directed; (c) Termination of the employment of the Applicant was not authorised; and (d) The Termination of any Applicant after they had been prevented from completing 'relevant work' had no impact on the health and safety of the public, and was therefore not consistent with the objects of the Public Health Act 2010 (NSW) and any order made pursuant to the powers under it. 37. Consequently, the Public Health Orders do not provide a basis for a valid dismissal of the Applicants. 38. In the absence of a legislative or statutory requirement, there were no grounds to validly dismiss the Applicants from their positions with the relevant employers. The Second Public Health Orders: Public Health (COVID-19 Vaccination of Education and Care Workers) Order (No 2) 2021 and Public Health (COVID-19 Vaccination of Health Care Workers Order (No. 3) 2021 39. The subsequent public health orders, Public Health (COVID-19 Vaccination of Education and Care Workers) Order (No 2) 2021, and Public Health (COVID-19 Vaccination of Health Care Workers Order (No. 3) 2021 have also been made pursuant to the power provided for under the Public Health Act 2010 (NSW). … 45. It is submitted that as the: … (c) Public Health (COV/O-19 Vaccination of Health Care Workers Order (No. 2) 2021; or (d) Public Health (COVID-19 Vaccination of Health Care Workers Order (No. 3) 2021 do not provide for the termination of the employment of the Applicant's, they would have, conversely, permitted the continuing employment of the Applicant up to and including the date of these submissions. 46. As the Public Health Orders would have allowed for continuing employment of the Applicants, albeit in different circumstances, it follows that they do not impede the Commission in providing remedies that include: (a) Reinstatement; or (b) Re-employment. Stand Down 47. Pursuant to s 126 of the Industrial Relations Act 1996 (NSW) the Commission may, on the application of an employer, order the stand down without remuneration of employees if there is no useful work for the employees because of: (a) industrial action, or (b) breakdown of machinery, or (c) any other act or omission, for which the employer or employers concerned are not responsible. 48. Where the Applicants were unable to perform work due to the interaction of the Public Health Orders and the Applicants' inability to adhere to the Public Health Order, a circumstance eventuated where there was no useful work for the employees due to an act for which the employer is not responsible, as considered by s 126(c) of the Industrial Relations Act 1996 (NSW). 49. Consequently, the Industrial Relations Act 1996 (NSW) provided a clear option to the Respondents where they determined they were not able to provide work to the Applicants in a manner compliant with the Public Health Orders, as they understood them, that did not necessitate the termination of the Applicant(s) employment. 50. It was open to the Respondents to make such an application to the Commission, where high priority would be given to such an application and, upon successful application, would not result in any remuneration being paid to the Applicant(s). 51. On the materials before the Commission it does not appear that any such application was made or considered. 52. In circumstances where the Respondents advance a position that the Applicant(s) cannot be reinstated as they are unable to perform work in compliance with the Public Health Orders, it remains an open option for the Respondents to seek orders permitting unpaid stand down for employees that fit within this category. Reinstatement 53. In the absence of a jurisdictional bar, the ordinary principles of reinstatement would apply in the circumstances of the Applicant(s) cases. 54. Reinstatement remains the primary remedy under the Industrial Relations Act 1996 (NSW). 55. Alternative remedies are only considered in circumstances where reinstatement would be impracticable. 56. The power of reinstatement is wholly separate from a subsequent finding that the practicability of such reinstatement means that there would be difficulty in making such an order. 57. The practicality of reinstatement is not a perceived or imagined process, but a substantive review of the relevant circumstances at the time such an order is to be made, the burden of which falls to the Respondent during the hearing process. 58. There does not appear to be a threshold requirement that the 'former position' of an Applicant be available for the entire duration of the Unfair Dismissal proceedings. 59. Any determination prior to a substantive hearing of an individual matter as to the practicability of reinstatement is premature, and does not restrict the Commission from having jurisdiction to award reinstatement should the circumstances permit such an order at the time of hearing. 60. Accordingly, for the duration of the proceedings, and up until a final determination is made by the Commission, there is no jurisdictional bar on reinstatement being awarded. 61. It is acknowledged by the Applicant(s) that, at the time of hearing, reinstatement may not be awarded due to factors that include the impracticability of reinstatement. 62. Separately, it is also acknowledged by the Respondent's, as stated previously, that alternative working conditions that did not include 'relevant work' were available to Applicants, and may still be available, or available again in the future. … 64. Further, the mere possibility of a future public health order should not, in our respectful submission, inform any determination about the jurisdiction of the Industrial Relations Commission of New South Wales prior to such an order existing. … Determination No. 33 73. The Scope of Determination 33 states that it relates to employees who are a NSW Health Service Employee, and that to be employed, or remain employed, such an employee must have received: (a) At least 1 dose of a COVID-19 vaccina as at the date of the determination; and (b) At least 2 doses of a COVID-19 vaccine on and from 30 November 2021. 74. Determination 33 does not countenance the dismissal or termination of an employee for a failure to adhere to the determination. 75. Section 116(A) of the Health Services Act 1997 (NSW), under which this determination is made, similarly does not make provision for the dismissal or termination of an employee. 76. Accordingly, it follows that a failure to adhere to Determination 33 cannot form the basis of a valid or lawful dismissal of any Applicant in these matters. 77. While it may be that reinstatement would be determined at a later stage as being impracticable, such a determination at this stage is premature in the absence of: (a) confirmed knowledge of the length of time Determination 33 will be in force; and (b) all other relevant circumstances that may exist at the time of final hearing and determination. The effect of potential willingness to be vaccinated 78. It is submitted that a future willingness to be vaccinated would speak directly to the conduct of the Respondent and the effect of such conduct on the dismissal of the Applicant(s) as it relates to the: (a) alleged justification for said dismissal; and (b) effect on individual Applicant(s) and the basis for the alleged justification for said dismissal. 79. In circumstances where, in individual circumstances, it may be demonstrated that the pre-termination conduct of the Employer was a relevant factor in regards to the alleged justification(s) for dismissal, such a matter would speak directly to the manner in which the dismissal was determined to be: (a) fair and reasonable; or alternatively (b) harsh, unjust or unreasonable. 80. Separately, any willingness to be vaccinated in the future will also directly impact the Commission in its ability to either: (a) direct reinstatement; or (b) Make any determination about the practicability of reinstatement.
2. Ms Prior, who appeared with Mr Dryley-Collins for the applicants, apart from Mr Christofi, put the following submissions at the hearing on 4 March 2022: The questions being forwarded as requiring clarification are largely the jurisdiction of the New South Wales Commission to award remedies based on the impact of the public health orders and the related determinations. As a matter of law we submit that the jurisdiction of the Industrial Relations Commission exists in these circumstances subject to any argument that such a jurisdiction has been displaced by the operation of public health orders and determinations. It's clear by the actions of the applicants that at all material times they were ready, willing and able to work for the respondents. The public health order that relates to health staff refers to the requirement that unvaccinated individuals must not do work at point 5.1 of the public health order which is found at p 17 of the bundle of health orders. We say, again, this position would be entirely consistent with the objects of the Public Health Act. Neither the public health order nor the Public Health Act require that any individual be terminated from their employment in order to comply with that order. We say that in the absence of such an express requirement to do so the applicants should have remained in their employment. This is relevant as there are circumstances where the applicants could have been working for the respondents in some capacity while having the applicants remain absent from the relevant workplace as specifically enlivened by the public health order. Why we say this is relevant to the issue of jurisdiction is that s 89(1) permits the Commission to order an employer to reinstate a person into their former position on terms not less favourable to the applicant than those would have been if the applicant had not been dismissed. Again, the power to reinstate the applicant has not been displaced in these circumstances. I'll turn now to determination 33. It is not contested that the applicant was subject to determination 33 which is commencing at p 40 of the bundle of health orders, however, much like the public health order, it did not require that the applicants were terminated from their employment, only that they may not work. Again, in the absence of such an express requirement to do so, the applicant would have remained in his employment. As with the public health order, this is relevant to the issue of jurisdiction and s 89(1) permits the Commission to order an employer to reinstate a person to their former position on terms no less favourable to the applicant than those that would have applied if the applicant had not been dismissed. The power to reinstate is not displaced by determination 33. We'd now like to turn to the concept of stand-down. We consider the availability of stand-down as being relevant to all the respondents so the following submission will be made on that basis. … PRIOR: Thank you, Commissioner, I was speaking at stand-down. Referring to s 126 of the Industrial Relations Act, in circumstances where the removal of the applicant from their substantive position and any demonstrated unavailability of alternative positions there remains a legal option open to the respondent to continue the employment of the applicant while not contravening either the public health order or determination 1. Section 126 of the Industrial Relations Act makes specific reference to an application made by an employer where there is no useful work for the employee because of any act or omission for which the employer is not responsible. We say this is relevant in regards to jurisdiction. There was an avenue available to the respondents to provide compliance with both the public health orders and determinations which would have permitted the ongoing employment of the applicant and resulted in minimal prejudice to the employer. While the applicant has been dismissed, this demonstrates, when we talk about a previous role of the applicant, it provides that there are circumstances where they could be returned to that role and still be compliant with the public health orders and determinations. It will be open to the respondent that in circumstances where reinstatement was granted the respondent would not be in contravention of the public health order or the determination by making the application pursuant to s 126 to stand down the applicant. As stated in s 126(2) high priority would be given to the hearing and determination of such an application and as further stated at s 126(4) of the Industrial Relations Act, this would still be a period of employment. So is this practicable? We refer largely to our submissions in regard to the applicant's view on the issue of whether the issue of practicability is a relevant consideration as regards the jurisdiction of the New South Wales Industrial Relations Commission. Our view remains that with reference to Director General, NSW Department of Health v Industrial Relations Commission (NSW) [2010] and that's at para 18 onwards at p 109 of our list of authorities, that any such determination does not speak to the jurisdiction of the Commission to award that remedy, but how it is considered at the time of the hearing and we refer you to para 20 of the same decision on p 114 of the applicant's list of authorities where it makes reference to "the requirement of the Commission to make a finding which is done at the time of the hearing". So anything that happened at some other time is not relevant. It's what's going on now that is important. The consideration of the practicality is, in or view, premature at any stage prior to the final hearing of any matter and should not at this stage factor into any consideration of the jurisdiction of the Commission to make these orders prior to the relevant hearing. They are our submissions at this stage of the proceedings, Commissioner.

Case for Mr Christofi

1. Relevant parts of a written outline of argument prepared by Mr Grealy of Australian Law Partners on behalf of Mr Christofi are set out below: INITIAL QUESTION 1. The initial question (the Question) to be determined is - Whether any Public Health Direction has any impact (and, if so, what impact) on the Applicant's assertion that: a. The Vaccine Direction was not a lawful and reasonable employment direction; and b. The Applicant's claim for reinstatement and/or damages for breach of his employment contract. 2. For the reasons specified hereunder, the Applicant says that: a. The relevant Public Health Direction does not abrogate existing statutory obligations; b. The Respondent continued to have statutory obligations to comply with the Work Health and Safety Act and Anti-Discrimination Act; c. The Respondent failed to properly discharge these statutory obligations; d. In these premises, the Vaccine Direction was unlawful and unreasonable and, therefore, unenforceable against the Applicant, notwithstanding the Public Health Direction. BACKGROUND 1. At all material times, the Applicant was employed by the Respondent as a cardiac sonographer. 2. On or about 9 August 2021, the Respondent introduced a policy (the Vaccine Direction) that required, inter alia: a. All employees to be vaccinated against SARS-COV2 with one of the available vaccines against the virus known as SARS-COV2 (being those commonly known as the Astra Zeneca, Moderna or Pfizer vaccines) (the Available Vaccines); and b. That each employee upload evidence that they have been vaccinated (Vaccination Evidence) against SARS-COV2 into VaxLink, which is part of the Respondent's Intranet (the Vaccination Evidence Direction). 3. It was a term of the Vaccine Direction that the Respondent would not grant exemptions against vaccination with an Available Vaccine on: a. Political grounds; or b. Conscientious or religious grounds. 4. In the alternative, in making the Vaccine Direction, the Respondent intended that no exemptions against vaccination would be granted on: a. Political grounds; or b. Conscientious or religious grounds. 5. It was a further term of the Vaccine Direction that the Respondent required employees seeking a medical exemption to provide a Medical Contraindication form approved by the Chief Health Officer, completed and signed by a registered medical practitioner (Contraindication Term). 6. In the alternative, in making the Vaccine Direction, the Respondent intended that no medical exemptions against vaccination would be granted, unless the Applicant strictly complied with the Contraindication Term. 7. It was a further term of the Vaccine Direction that, despite receiving a fully completed and signed Medical Contraindication form from an employee, the Respondent reserved the right to refuse to grant a medical exemption to the employee. 8. In the alternative, in making the Vaccine Direction, it was the Respondent's intention that employees would not be entitled to a medical exemption, unless they made application to the Respondent and the Respondent thereafter approved that medical exemption. 9. The Vaccine and Vaccination Evidence Directions applied to all employees of the Respondent without any consideration for: a. The working conditions of different groups of employees; b. The different workplaces and the availability of remote or work-from-home options; c. The unique health conditions of each individual employee; d. The comparative risks posed by and to each employee; e. What other measures might be taken to diminish the spread of SARS-COV2; f. The human rights of each employee; and g. The religious convictions of each employee; and h. The political viewpoints of some employees. 10. Both before and after 9 August 2021, the Respondent made numerous representations to the effect that the Available Vaccines were safe and effective (the Representations). 11. Although the Respondent published a Frequently Asked Questions Document, this document contained very little information about the Available Vaccines... 12. On 31 August 2021, the Applicant sent correspondence to the Respondent, noting his concerns about the safety of the Available Vaccines and his opposition to any person being forced to, or coerced into, submitting to an experimental medical treatment (the Political Ideology)... 13. On 14 September 2021, the Respondent sent correspondence to the Applicant, noting that he had not entered his Vaccination Evidence into VaxLink and requiring him to be vaccinated by 30 September 2022... 14. On 28 September 2021, the Applicant's solicitors sent correspondence to the Respondent, asserting that the direction that the Applicant be vaccinated with one of the Available Vaccines was not a lawful and reasonable employment direction and, therefore, it could not be enforced against the Applicant... 15. On 28 September 2021, the Respondent notified the Applicant that he could not come to work and was being placed on unpaid leave... 16. On 1 October 2021, the Respondent notified the Applicant that he must comply with the Public Health Direction... In an apparent attempt to assuage the Applicant's anxiety, the Respondent asserted that: a. The Available Vaccines were safe and effective; and b. The mRNA used in the Pfizer and Moderna Vaccines was easily broken down in the human body and was not toxic. (the Representations). 17. On 6 October 2021, the Respondent asked the Applicant to show cause why his employment ought not be terminated because of his failure to comply with the Vaccine Direction... 18. On 13 October 2021, the Applicant's solicitors provided a response to the Respondent's show cause letter... 19. On 15 October 2021, the Applicant's solicitors notified the Respondent that: a. The Applicant follows the Christian faith and the tenets of the King James Bible; and b. The Available Vaccines were developed using HEK293, being foetal kidney cells harvested from a live aborted child; c. Abortion and the effective torture of children are contrary to the Applicant's religious beliefs as a Christian and contrary to the teachings of the Bible; and d. The Available Vaccines were, therefore, contrary to his religious convictions and he cannot conscientiously submit to vaccination (the Religious and Conscientious Beliefs)… 20. On 20 December 2021, the Respondent terminated the Applicant because of his failure to comply with the Vaccine Direction... 21. At all material times from 9 August 2021 onwards, the Applicant: a. Was suffering from a suppressed immune system as a result of his performing work as a radiologist and other medical conditions; and b. Was suffering from kidney disfunction, caused by bilateral renal duplex system and ureteral re-implantation surgery, which in turn caused suppression of his immune system (the Medical Disabilities). (It is submitted that the nature of the Applicant's Medical Disabilities is not relevant to the Question. the Applicant will provide evidence of his medical condition when appropriate) PUBLIC HEALTH DIRECTIONS 22. On or about 26 July 2021, the Public Health (COVID-19 Vaccination of Health Care workers) Order 2021 (the Public Health Direction) was made in New South Wales. 23. Pursuant to the Public Health Direction, a health worker must not do work as a health care worker unless - a. The worker has received at least 1 dose of one of the Available Vaccines by 30 September 2021; and b. The worker has received at least 2 doses of an Available Vaccine by 30 November 2021. 24. The Public Health Direction provides only that health care workers performing health care work must be vaccinated against SARS-COV2. 25. The Public Health Direction: a. Does not require that all NSW Health employees must be vaccinated with an Available Vaccine; b. Does not require that all health care workers must be vaccinated with an Available Vaccine; c. Does not contain any provisions that would expressly or impliedly abrogate the existing laws of New South Wales; and d. Does not direct the Respondent to vaccinate, or cause to be vaccinated, each of its employees. 26. The State Emergency and Rescue Management Act and Public Health Act (being the legislation pursuant to which the Public Health Direction was made): a. Do not provide for the abrogation of existing New South Wales law during a state of emergency; b. Do not repeal the Work Health and Safety Act or Anti-Discrimination Act; and c. Do not alter or override the rights and obligations contained in the Work Health and Safety Act or Anti-Discrimination Act. WORK HEALTH AND SAFETY ACT 27. The Work Health and Safety Act provides, inter alia, as follows: a. S.19 - The Respondent was bound to ensure (WHS Duties), so far as reasonably practicable: i. The health and safety of workers influenced or directed by the Respondent; ii. The provision and maintenance of a work environment without risks to health and safety; iii. The provision of any information, training, instruction or supervision that is necessary to protect workers from risks to their health and safety in relation to work; and iv. The health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers. b. S18 - Reasonably practicable means reasonably able to ensure health and safety, taking into account matters including: i. The likelihood of the hazard or the risk concerned occurring; and ii. The degree of harm that might result from the hazard or the risk; and iii. What the Respondents knew, or ought reasonably to have known, about: A. The hazard or the risk; and B. Ways of eliminating or minimising the risk; and iv. The availability and suitability of ways to eliminate or minimise the risk; and v. After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk. c. The WHS Duties were, and are, non-delegable and cannot be transferred or passed off to any third party. d. Ss.35 to 38 - i. Employers must report notifiable incidents to the WHS regulator immediately after becoming aware that a notifiable incident has occurred (the Notification Duty); ii. Notifiable incident means the death or a serious injury to, or illness of, an employee; and iii. Serious illness or injury means an injury or illness requiring, inter alia, hospitalisation or medical treatment. e. S.47 - the Respondent was bound to consult with any employee who was, or was likely to be, directly affected by any matter relating to work health and safety; f. Consultation required that: i. Relevant information about the matter was shared with employees; and ii. Employees were given a reasonable opportunity to: 1. Express their views and to raise work health or safety issues in relation to the matter; and 2. Contribute to the decision-making process relating to the matter; and iii. The views of employees were taken into account by the Respondents.
2. The outline of argument then continued with further detailed analyses of alleged failures on the part of the Health Secretary with respect to work, health and safety obligations to employees; the unsafe status and lack of efficacy of available vaccines; and the discriminatory nature of the directions given to employees to become vaccinated.
3. At the hearing on 4 March 2022, Mr Grealy put the following oral submissions: GREALY: It is the applicant's position that public health orders do not absolve New South Wales health from its existing obligations under the Work Health and Safety Act, the Industrial Relations Act, the Australian Human Rights Commission Act and the Anti-Discrimination Act. The public health orders merely require that certain workers working in certain workplaces must be vaccinated. They do not provide that all New South Wales health employees must be vaccinated or be dismissed. They do not allow employers to demand that employees be vaccinated unless those employers properly discharge their usual statutory obligations as an employer. The Work Health and Safety Act required New South Wales health to properly consult with employees before making a major change to its work health and safety policy. It also required New South Wales health to conduct a proper risk assessment to determine whether the vaccines were reasonably safe and effective and were a reasonably proportionate response to the risks posed by SARS-CoV-2 in healthy Australians. It is submitted that New South Wales health did neither of these things. Further, New South Wales health was provided with substantial correspondence expressing concerns about the safety of the vaccines but mostly ignored that correspondence. At about this time it was also aware or ought reasonably to have been aware that New South Wales health and other employees were suffering serious adverse events after vaccination, yet it appears it did nothing to revisit its vaccine policy or disclose such events to its employees. It knew that Omicron was less dangerous than the previous strains and would cause mostly minor symptoms in healthy employees, yet it did nothing to revisit its vaccine policy in this respect. New South Wales health had a statutory obligation to monitor the situation and adjust its policy as required. Instead, it continued to encourage vaccination and represent that the vaccines were safe and effective. Because of the failure to update its policy, the applicant says that the enforcement of the employment direction against the applicant is unlawful and unreasonable. Anti-discrimination legislation and the provisions in the Industrial Relations Act required that New South Wales health not discriminate against its employees on religious, political or medical grounds. The applicant contends that New South Wales health has discriminated against him on these grounds. He also does not accept that he does not have a valid medical contraindication in circumstances where if this is shown he would be entitled to be reinstated to his position. New South Wales health says that vaccination against SAR-CoV-2 became an inherent requirement of the applicant's employment, thereby enabling discrimination. The applicant says that New South Wales health cannot lawfully change the inherent requirements in an employment contract without varying that contract. It cannot vary the contract without the applicant's agreement, and this agreement has not been provided. New South Wales health has not shown that it complied with its obligations under the Work Health and Safety Act or antidiscrimination provisions. It has not shown that it complied with its contractual obligations to provide a safe workplace and refrain from discrimination. New South Wales health says that it has made and enforced a reasonable and lawful employment direction to the applicant to be vaccinated by way of determination 33. The applicant submits that an employment direction or this determination cannot be reasonable or lawful if it has been made and then remains on foot in circumstances where New South Wales health has failed to comply with its legislative obligations. The cases clearly show that when an employment direction is lawful and - whether an employment direction is lawful and reasonable will depend on all of the circumstances, including each employee's unique situation. A blanket policy with one-size-fits-all consultation and safety investigations is, in the applicant's submission, clearly improper. The circumstances to be considered in determining whether an employment direction is lawful and reasonable are not limited to just the public health orders. These orders form part of the total circumstances that must be considered in making that determination. If the applicant successfully establishes on the evidence that the employment direction or the determination was not lawful or reasonable, then New South Wales health had no right to terminate the applicant's employment. If it had no right to terminate, then the applicant is entitled to be reinstated until New South Wales health has made a lawful and reasonable employment direction and he has had a reasonable opportunity to comply with it. That this might mean that the applicant is unable to work in the meantime is irrelevant. New South Wales health could only lawfully dismiss the applicant in this instance if the direction to be vaccinated was lawful and reasonable. If it is not lawful and reasonable, then the applicant is entitled to be reinstated. Those are Marino Christofi's submissions, thank you.
4. The Health Secretary relied upon detailed written and oral submissions in reply.

Determination

1. The purpose of this preliminary hearing and decision is not to examine or to rule upon the merits, or lack thereof, of any of the applications before the Commission. Issues such as the validity, or invalidity, of the dismissals of any of the applicants in the public health matters do not arise for consideration at this stage of the proceedings. The purpose, at this point, is to determine questions concerning the operation of the Public Health Orders and Determinations, set out at [10]-[14] above, with respect to the capacity of the Commission to grant relief to a dismissed employee pursuant to s 89 of the Industrial Relations Act. It follows that the Commission is not, in this proceeding, concerned with issues such as the fairness, or lack thereof, of the dismissal of the applicants but, rather, with the question as to what, if any, remedy may be ordered in favour of any applicant whose dismissal is ultimately found to have been unfair.
2. Each of the applicants in the public health matters (listed at [3] above) would be, if reinstated to their former position, classified as a stage 1 health care worker for the purposes of the Third and Fourth Health Orders (at [12]-[13]). This would also be the case if an order was made that any of them be re-employed in another position in a local health district. As such, pursuant to clause 5 of the Fourth Health Order, they "must not do work as a health care worker unless the worker has had at least 2 doses of a COVID-19 vaccine". This would preclude them from doing work for "a public health organisation" which includes "a local health district" (ss 7(a) Health Services Act). In effect, the Fourth Health Order, which is currently in force, would prevent any of the applicants from doing the job into which they may be reinstated or re-employed by order or the Commission. This would render impracticable any order by this Commission for reinstatement or re-employment of any of the applicants in the public health matters.
3. Further, the Health Determination (at [14]) has made it a condition of employment that all employees of local health districts, such as the applicants were prior to their dismissals, be double vaccinated against COVID-19 or hold a medical contraindication certificate. It is not open to the Commission, in this proceeding, to go behind the Health Determination and look at issues such as the medical and/or scientific basis or rationale for the making of the Health Determination by the Health Secretary. The Commission accepts that the Health Determination has been validly made and is now part of the industrial landscape for workers in the public health sector. It would be impracticable for the Commission to make orders which purport to restore the applicants to employment as NSW Health Service Employees under Part 1 of Chapter 9 of the Health Services Act in circumstances where they do not satisfy an essential condition of that employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.
4. It follows that I accept as correct what is put at paragraphs 1-16 and 30-54 of the written submissions of the Health Secretary (at [39]).
5. With respect to the case put on behalf of the applicants, at paragraphs 35-38 of the written submissions filed by Supportah Australia, it is put that "the Public Health Orders do not provide a basis for a valid dismissal of the Applicants" and that "there were no grounds to validly dismiss the Applicants from their positions with the relevant employers" (at [41]). Whether or not this submission is correct is not the subject of consideration in this decision. The dismissals of the applicants are a fact of life. They have occurred. This decision is concerned with what, if anything, the Commission can do about it in the event that unfairness is established, which may involve consideration of issues such as the validity, or invalidity, of the dismissals. As previously stated, what the Commission cannot do is order reinstatement or re-employment of the applicants because such orders would be impracticable. It follows that I disagree with what is put at paragraphs 45-46 and 53-77 of the submissions put on behalf of these applicants.
6. In relation to the submission put at paragraphs 47-52 with respect to s 126 of the Industrial Relations Act and the potential availability of stand down orders as an alternative to dismissals, I repeat that the dismissals have occurred. The availability to the employer of alternatives may or may not impact on the consideration of the issue of unfairness, but cannot impact on the availability of remedies that the Commission may order in the event that unfairness is established. It would not be open to the Commission to order reinstatement on the condition that the Health Secretary apply for and be granted a stand down order (see Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 at [21]-[24]). In any event, the Health Determination makes it a condition of employment for a NSW Health Service Employee to be vaccinated against COVID-19 or hold a medical contraindication certificate, whether at work or stood down.
7. The written submissions put by Mr Grealy on behalf of Mr Christofi attack the Health Secretary's "Vaccine Direction" on the grounds that it was "unlawful and unreasonable and, therefore, unenforceable against the Applicant, notwithstanding the Public Health Direction" (paragraph 2d at [43]). The submissions then canvass issues such as the human rights, religious convictions and political viewpoints of employees; the use of "foetal kidney cells harvested from a live aborted child" in the development of "Available Vaccines"; the applicant's own health status; and alleged non-compliance by the Health Secretary with statutory obligations under the Work Health and Safety Act 2011 and the Anti-Discrimination Act 1977.
8. As already stated, these are not issues for consideration by the Commission, at least, not at this stage of the proceedings.
9. Nothing that has been put on behalf of the applicants has dissuaded me from making the determination that, with respect to each of the public health matters, no order can be made in favour of any of the applicants for reinstatement or re-employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.
10. This determination, however, leaves open the possibility of orders being made for compensation pursuant to ss 89(5) of the Industrial Relations Act. The parties have not been asked to address this aspect of the applications.
11. Further, the applicants, or some of them, may wish to reconsider their position with respect to vaccination and become vaccinated which would potentially remove the existing barrier to being employed in the NSW Health Service.
12. I propose to list the public health matters for mention in the near future to allow the parties to address the Commission on the future course of the applications in light of the determination I have made on the preliminary issues set out at [1] above

Mrs Thorncraft's application

1. The Education Secretary placed in evidence before the Commission, copies of two employment contracts to which Mrs Thorncraft was a party. Both documents were titled "TEMPORARY TEACHER ENGAGEMENT CONTRACT". The first was for the period "27.01.2021 to 11.07.2021" and the second for the period "12.07.2021 to 27.01.2022" at Cronulla Public School. Both contracts, under the heading "TERMS OF ENGAGEMENT", contained the following: This notice confirms an offer and acceptance of engagement as a temporary teacher only for the period specified above. There is not (sic) guarantee or expectation of any further or ongoing temporary employment beyond the end date specified.
2. Also in evidence were copies of other temporary employment contracts pursuant to which Mrs Thorncraft had been engaged to work in various public schools.
3. Despite requests made to her, Mrs Thorncraft did not become vaccinated or obtain a medical contraindication certificate within the timeframe set out in the First Education Order. On 7 October 2021, the Principal of Cronulla Public School sent an email to Mrs Thorncraft giving her notice that her contract of employment "will end on the 4th November, which is 4 weeks from today".
4. In her unfair dismissal application, which was filed on 9 November 2021, the applicant raised a number of issues going to the fairness, or lack thereof, of her dismissal. These included that she had disputed the notice of termination in accordance with the dispute resolution procedure set out in the relevant award; that her employer had not provided support or support services; no specific reason for her dismissal had been provided; she was not afforded the opportunity to discuss the matter with the decision maker; she was terminated on a day which was a non-working day for her; the notice period given was "faulty"; no risk assessment of the compulsory requirement to become vaccinated had been provided to her; and the consultation requirements of the Work Health and Safety Act had not been complied with.
5. In extensive written submissions filed on 17 December 2021 and 12 January 2022, the applicant expanded on these issues. The applicant's submissions canvassed the "Jurisdictional Framework" and asserted that the applicant "meets all criteria under the IR Act to seek relief from an Unfair Dismissal through Conciliation or Arbitration, as needed. Jurisdictional standing under the Unfair Dismissal criteria, section 83 of the IR Act is not contested". It was submitted that for four months "of the current contract the performance of work was at the Applicant's home, at a location other than a government school at the Respondent's direction... The nature of the Applicant's duties did not require her to be in a traditional classroom setting or at a government school. The Respondent overstates their inability to compliantly reinstate or reemploy the Applicant… The PHO states that 'Relevant work' includes all work performed at a government school. Accordingly, relevant work would not include work performed at a location that is not a government school".
6. With respect to the period, or periods, of employment of up to three years for a temporary employee, as specified in ss 50(5)(a) of the Teaching Service Act, it was submitted that, because the applicant had been "employed by the Respondent since April 2016 and has been employed greater than for a period or period of up to 3 years by the Respondent. As an employee whose employment exceeds the upper limit of employment duration. The Respondent recognises that the Applicant been employed for more than 3 years…". It follows, according to the submission, that the applicant was not a temporary employee employed pursuant to the Teaching Service Act.
7. On the issue of the four weeks' notice of dismissal required to be given to a temporary employee by ss 50(6)(a) of the Teaching Service Act, the applicant filed extensive written submissions in support of the assertion that, because she had not been provided with four weeks' notice, then she had not been dismissed and ss 50(7) had no application to her situation.
8. The applicant's submissions also canvassed matters that went to the asserted unfairness of the applicant's dismissal, but did not properly deal with the impact of the Education Determination (at [21]) on the applicant's claim for reinstatement or re-employment.
9. It was the position of the Education Secretary that the unfair dismissal application should be dismissed because the applicant had been employed as a temporary employee pursuant to s 50 of the Teaching Service Act. Her employment had been terminated in accordance with ss 50(6)(a) of that Act and, in accordance with ss 50(7), she was not entitled to "any other compensation or other entitlement…".
10. The Education Secretary also relied on the First and Second Education Orders (at [15]-[18] since replaced by the Third Education Order at [20]) in support of the submission that, as an "education and care worker" as defined, the applicant would be prevented from carrying out relevant work in a government school, which would render any order for reinstatement or re-employment impracticable.
11. Extensive written and oral submissions were put before the Commission in support of the Education Secretary's opposition to the application. I have not found it necessary to canvass at any length those submissions.
12. It is my determination that, regardless of the fairness or lack thereof of the applicant's dismissal, about which I express no opinion either way, the First, Second and Third Education Orders prevent the applicant from working in a school while she remains unvaccinated against COVID-19 or without a medical contraindication certificate. Any order by the Commission that the applicant be reinstated or re-employed in a school-based position would be impracticable and a futility.
13. It was submitted, on behalf the applicant, that the Commission could make an order that the applicant be employed in a non school-based role such as providing home schooling remotely. Subsection 89(2) of the Industrial Relations Act provides that, where reinstatement is impracticable, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. In this matter, there is no evidence before the Commission that there is any non school-based position which is available and suitable for the applicant. In any event, the difficulties confronting the applicant in persuading the Commission that she, as a non-vaccinated former teacher, should, in effect, be given preferential treatment over vaccinated teachers for appointment to a non school-based teaching position, are manifest.
14. Further, the terms of the Education Determination make it a condition of employment for "all employees of the Department in the Teaching Service" to have proof of vaccination or a medical contraindication certificate, neither of which is possessed by the applicant. Whilst ever this remains a condition of employment for employees in this field, reinstatement or re-employment of a dismissed employee who does not satisfy such a condition of employment will remain impracticable.
15. As previously stated, I make this determination without expressing any opinion one way or the other on the matters raised by the applicant going to the fairness, or lack thereof, of the termination of her employment and the merits of her unfair dismissal application.
16. The only other remedy available to dismissed employees pursuant to s 89 of the Industrial Relations Act is an order for compensation pursuant to ss 89(5). However, in this case s 50 of the Teaching Service Act requires consideration.
17. At the time of her dismissal, notice of which was given on 7 October 2021, the applicant was a temporary employee. Her contract of employment was due to expire on 27 January 2022. I reject the attempt that was made in submissions to characterise the applicant as something other than a temporary employee in the face of the clear and unambiguous terms of her employment contract. In her unfair dismissal application, the applicant repeatedly referred to herself as "temporary teacher" and to her "temporary teaching engagement". Contrary to the submission put on behalf of the applicant, s 50 of the Teaching Service Act provides for the employment of a temporary employee for a period or periods of up to three years, that is for a number of periods of up to three years each period, not three years in total. This follows from a reading of the plain words of ss 50(5)(a) (at [22]). Up until her dismissal, the applicant clearly understood and accepted this to be the nature of her employment (at [59]).
18. The applicant has submitted that, despite the notice of her dismissal having been emailed to her on 7 October 2021 notifying her last day of employment as 4 November, the bare 28 days or four weeks' notice required by ss 50(6)(a) of the Teaching Service Act, it was "only received and comprehended on 11 October 2021, being Mrs Thorncraft's first working day of the following week", effectively giving the applicant 24 days' notice instead of the required four weeks. It was further submitted that, because the Education Secretary "may not terminate the employment of a temporary employee… unless the employee… is given at least 4 weeks notice of the proposed termination" and the applicant was not given the required four weeks' notice of the proposed termination, then she was not dismissed and ss 50(7) has no application to her situation.
19. The Education Secretary made extensive submissions on the operation of s 50 of the Teaching Service Act and on the issue of whether the applicant was employed as a temporary employee.
20. Given that s 50 of the Teaching Service Act has broad application to all temporary employees in the Teaching Service and has not, to my knowledge, previously been the subject of detailed consideration in this Commission, I invited submissions from the parties as to whether questions concerning the operation of s 50 should be referred to a Full Bench of the Commission for consideration and determination. Neither party supported such a referral and I have accepted their position in this regard.
21. What is undisputed is that the applicant did not work as a teacher and was not paid after 4 November 2021. She was dismissed. Whether her dismissal was effected in accordance with ss 50(5) of the Teaching Service Act or not is irrelevant to the issue before the Commission. If, as the applicant asserts, she was not dismissed in accordance with the terms of ss 50(6)(a), that is with "at least 4 weeks notice of the proposed termination", she may have a claim in another jurisdiction for some form of relief. However, as far as the powers of this Commission are concerned, ss 50(7) disentitles a "temporary employee whose employment has been terminated", noting that the provision does not say "terminated in accordance with this section" but simply says "terminated", to "any other compensation or entitlement for the termination of employment other than superannuation entitlements".
22. It follows that an order by this Commission for payment of compensation pursuant to ss 89(5) of the Industrial Relations Act is not available to a temporary employee of the Teaching Service who has been dismissed, such as the applicant in this case.
23. To the extent that "superannuation entitlements" are not excluded by ss 50(7), this is not an entitlement that this Commission has power to award in an unfair dismissal case.
24. It follows that the Commission has no power to order any of the forms of relief available under s 89 of the Industrial Relations Act to the applicant in this matter. Her application must be dismissed.
25. I so order.

Mr Dunque's application

1. The applicant in this matter, Mr Dunque, was employed as a temporary teacher at Glenn Innes High School. As at the effective date of his dismissal, 8 November 2021, the applicant was employed on a "TEMPORARY TEACHER ENGAGEMENT CONTRACT" from "26.05.2021 to 09.11.2021". The applicant's employment was terminated due to his failure to comply with the requirements of the First Education Order which prohibited education and care workers from working on school grounds after 8 November 2021 unless they provided evidence that they had two doses of a COVID-19 vaccine or could provide suitable evidence of a medical contraindication. The applicant was paid four weeks' pay in lieu of notice. In his application, the applicant is seeking reinstatement or re-employment.
2. The bulk of the submissions put on behalf of the applicant in this matter went to the merit, or lack thereof, of the First and Second Education Orders and the Education Determination. This is not the case in which to debate those matters. The Commission accepts that the First, Second and Third Education Orders and the Education Determination were validly made by the Health Minister and the Education Secretary respectively. The effect of the Second and Third Education Orders and the Education Determination, in combination, is to render any order the Commission might make for the reinstatement or re-employment of the applicant in a position in the public school system impracticable for the reasons previously stated above.
3. This leaves only the issue of compensation which, pursuant to ss 50(7) of the Teaching Service Act, is unavailable to the applicant.
4. The application must be dismissed.
5. I so order.

Mr Johnson's application

1. The applicant, Mr Johnson, was employed as an Asset Services Officer in the Department of Education. During the hearing on 4 March 2022, Mr Dryley- Collins, who was representing Mr Johnson, advised the Commission that his client had instructed him to discontinue the proceedings. I don't propose to deal any further with this application. John Murphy Commissioner SCHEDULE A - 4 MARCH 2022 2022/8256 Ainsley Griffin v Health Secretary in respect of Mid North Coast Local Health District 2022/8275 Heather Pirie v Health Secretary in respect of Mid North Coast Local Health District 2022/9564 Natalie White v Health Secretary in respect of Northern NSW Local Health District 2022/9832 Jordan Knight v Health Secretary in respect of Northern NSW Local Health District 2022/10587 Jessica Matthews v Health Secretary in respect of Southern NSW Local Health District 2022/10820 Brigitte Thomson v Health Secretary in respect of Northern NSW Local Health District 2022/10991 Brooke O'Brien v Health Secretary in respect of Northern Sydney Local Health District 2022/11911 Helen Tsamoglou v Health Secretary in respect of Northern Sydney Local Health District 2022/33393 Susan Angeline Forbes v Health Secretary in respect of Hunter New England Local Health District 2022/11657 Marinos Christofi v Health Secretary in respect of Northern Sydney Local Health District 2021/319573 Lauren Thorncraft v Secretary of the Department of Education 2021/350725 Colin Robert Dunque v Secretary of the Department of Education 2022/10564 Jamie Johnson v Secretary of the Department of Education SCHEDULE B - 1 MARCH 2022 2021/319573 Lauren Thorncraft v Secretary of the Department of Education 2021/349404 Sharna Coyne v Secretary of the Department of Education 2021/349455 Simone Bell v Secretary of the Department of Education 2021/349477 Sarah Arnott v Secretary of the Department of Education 2021/349509 Luk Harmonie v Secretary of the Department of Education 2021/349519 Lyn Evans v Secretary of the Department of Education 2021/349535 Debbie Chetham v Secretary of the Department of Education 2021/349550 Kendy McCauley v Secretary of the Department of Education 2021/349562 Dale Nanette Worland v Secretary of the Department of Education 2021/3495873 Jennifer Stojanovski v Secretary of the Department of Education 2021/349603 Deborah Burkhardt v Secretary of the Department of Education 2021/349612 Kelsey-Jane Sealby v Secretary of the Department of Education 2021/349629 Megan Harris v Secretary of the Department of Education 2021/349643 Gemma Walker v Secretary of the Department of Education 2021/349657 Michelle Webster v Secretary of the Department of Education 2021/349675 Sarah Roberts v Secretary of the Department of Education 2021/349686 Kathryn Olsen v Secretary of the Department of Education 2021/349707 Andrew Low v Secretary of the Department of Education 2021/350725 Colin Robert Dunque v Secretary of the Department of Education 2021/355288 Bridget Seymour v Secretary of the Department of Education 2021/355360 Jo-Anne Levey v Secretary of the Department of Education 2021/355380 Amy Robinson v Secretary of the Department of Education 2022/8256 Ainsley Griffin v Health Secretary in respect of Mid North Coast Local Health District 2022/8275 Heather Pirie v Health Secretary in respect of Mid North Coast Local Health District 2022/8392 Rangi Tairi v Secretary of the Department of Education 2022/8740 Jayden Hunt v Secretary of the Department of Education 2022/9564 Natalie White v Health Secretary in respect of Northern NSW Local Health District 2022/9832 Jordan Knight v Health Secretary in respect of Northern NSW Local Health District 2022/10564 Jamie Johnson v Secretary of the Department of Education 2022/10587 Jessica Matthews v Health Secretary in respect of Southern NSW Local Health District 2022/10804 Min Jeong Kim v Secretary of the Department of Education 2022/10820 Brigitte Thomson v Health Secretary in respect of Northern NSW Local Health District 2022/10991 Brooke O'Brien v Health Secretary in respect of Northern Sydney Local Health District 2022/11657 Marinos Christofi v Health Secretary in respect of Northern Sydney Local Health District 2022/11911 Helen Tsamoglou v Health Secretary in respect of Northern Sydney Local Health District 2022/33393 Susan Angeline Forbes v Health Secretary in respect of Hunter New England Local Health District SCHEDULE C - 20 December 2020 2021/349404 Sharna Coyne v Secretary of the Department of Education 2021/349455 Simone Bell v Secretary of the Department of Education 2021/349477 Sarah Arnott v Secretary of the Department of Education 2021/349509 Luk Harmonie v Secretary of the Department of Education 2021/349519 Lyn Evans v Secretary of the Department of Education 2021/349535 Debbie Chetham v Secretary of the Department of Education 2021/349550 Kendy McCauley v Secretary of the Department of Education 2021/349562 Dale Nanette Worland v Secretary of the Department of Education 2021/349583 Jennifer Stojanovski v Secretary of the Department of Education 2021/349603 Deborah Burkhardt v Secretary of the Department of Education 2021/349612 Kelsey-Jane Sealby v Secretary of the Department of Education 2021/349629 Megan Harris v Secretary of the Department of Education 2021/349643 Gemma Walker v Secretary of the Department of Education 2021/349657 Michelle Webster v Secretary of the Department of Education 2021/349675 Sarah Roberts v Secretary of the Department of Education 2021/349686 Kathryn Olsen v Secretary of the Department of Education 2021/349701 Andrew Low v Secretary of the Department of Education 2021/355288 Bridget Seymour v Secretary of the Department of Education 2021/355360 Jo-Anne Levey v Secretary of the Department of Education 2021/355380 Amy Robinson v Secretary of the Department of Education

Amendments 22 April 2022 - Minor amendments 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: 22 April 2022