Fair Work Act 2009

s.394 - Unfair dismissal

Applications for an unfair dismissal remedy - Whether the dismissals were harsh, unjust or unreasonable within the meaning of s. 387 of the FW Act.

Notification to Applicants of termination of their employment

Approach to considering and weighing matters in s. 387

Whether the Applicants were notified of the reason for dismissal - s. 387(b)

Whether the Applicants were given opportunity to respond to reasons for dismissal - s. 387(c)

Whether the Applicants were refused a support person - s. 387(d)

Whether the Applicants were warned of unsatisfactory performance - s. 387(e)

Impact of size of the Respondent's enterprise - s. 387(f) and (g)

• [1] This Decision concerns applications made by 25 former employees of DP World Sydney Limited (DP World Sydney) and DP World Brisbane Pty Ltd (DP World Brisbane) (collectively, the Respondents/DP World). The Respondents are subsidiary companies wholly owned by DP World Australia Limited which operates a national container stevedoring business at shipping container terminals in Sydney, Brisbane, Melbourne and Fremantle. With effect from 21 October 2021, DP World adopted the DP World Australia COVID-19 Vaccination Mandate (Mandate) requiring that employees receive two doses of vaccination against COVID-19 by specified dates depending on their locations. Employees were also required to inform DP World of their vaccination status and provide evidence of vaccination or a medical contraindication to vaccination by the required dates. Each of the Applicants was dismissed for failing to comply with the Mandate.

• [2] The applications were made under s. 394 of the Fair Work Act 2009 (the FW Act) and each Applicant seeks a remedy of reinstatement for unfair dismissal. The Mandate continued to apply at DP World terminals at the time the applications were heard, although the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division (MUA) contends that the Respondents are maintaining their position in relation to the Mandate pending the final determination of these proceedings and that the Mandate is not being enforced at DP World's terminals, and employees have not been required to receive boosters to maintain the currency of their COVID-19 vaccinations.

• [3] With the agreement of the parties, a two-part process for dealing with the applications was put in place whereby an initial hearing was conducted to deal with the question of whether there was a valid reason for each dismissal as provided in s. 387(a) and a second hearing was conducted to deal with the other matters in ss. 387(b) - (h) and if the dismissals were found to be unfair, the question of remedy.

• [4] At the initial hearing in relation to valid reason, the MUA represented 21 Applicants located in both Sydney and Brisbane. The case for those Applicants was conducted by the MUA's National Legal Officer, Mr Kirk Bond. Four of the Applicants were self-represented. Mr Stephen Crilly of Seyfarth Shaw Australia was granted permission under s. 596 of the FW Act to represent the Respondents.

• [5] In a Decision issued on 10 January 2023[1] (the Valid Reason Decision), I determined that the introduction of the Mandate was a reasonable response to the situation the Respondents were in, not unlawful and that the Applicants' non-compliance with the Mandate was a valid reason for their dismissals notwithstanding DP World's failure to comply with requirements in relation to consultation with the MUA, Workplace Health and Safety Representatives (HSRs) and employees under relevant work health and safety legislation and arguably the Agreements applying to employees at the Sydney and Brisbane operations of DP World. I also indicated my view that the finding in relation to valid reason would not preclude a subsequent conclusion in the next phase of the proceedings that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which would fall for consideration under ss. 387(b) - (h) of the FW Act[2].

• [6] An appeal was lodged against the Valid Reason Decision by the 21 Applicants represented by the MUA and 3 of the self-represented Applicants. In a decision issued on 21 March 2023[3], a Full Bench of the Commission dismissed the appeals after concluding that the Valid Reason Decision did not determine any matters on an intermediate or final basis and no competent appeals capable of consideration under s. 604 of the FW Act, were advanced by the Appellants. Member Assisted Conciliation Conferences were also conducted which did not result in the matters being resolved.

• [7] Directions were issued on 4 April 2023 for a hearing to determine the outstanding matters. Directions were issued requiring the Applicants to file outlines of submissions and witness statements in support of their contentions in relation to ss. 387(b) - (h) and in relation to remedy, as provided in ss. 391 and 392. The Respondents were directed to file an outline of submissions and witness statements in response to the material filed by the Applicants. The Applicants were also afforded an opportunity to provide any material in reply.

• [8] At the request of the parties, an in-person hearing was conducted over 4 days on 11 and 12 July 2023 in Sydney and on 25 and 26 July 2023 in Brisbane. The hearing was conducted in both locations to enable Applicants based in those locations to attend the hearing and give evidence before the Commission. Some Applicants were unable to attend the hearing in person and gave evidence by video link. At the hearing, the MUA continued to represent 21 Applicants and in addition, represented Mr Kevin MacDonald who was self-represented in the initial hearing. Three Applicants (Mr Jason Pintley, Mr Zoltan Nemeth and Mr Richard Taylor) continued to be self-represented. Mr Crilly continued his appearance for the Respondents in accordance with permission granted in the proceedings relating to valid reason. A list of the Applicants indicating their location, their mode of attending the hearing and the material supporting their applications is set out in Annexure A to this Decision. Where necessary I have also referred to the Applicants as the Sydney Applicants and the Brisbane Applicants.

• [9] At the hearing Mr Bond advised that one of the represented Applicants - Mr Mick Grujevski[4] - who filed a witness statement in support of his application, did not wish to participate in the hearing or give evidence before the Commission.[5] I accepted the Respondents' submission that Mr Grujevski's witness statement should not be tendered into evidence on the basis that it was not sworn and his evidence was not able to be tested in cross-examination.[6] The material before the Commission in support of Mr Grujevski's application, and to which I have had regard, comprises his Form F2 Application and the submissions made on behalf of the represented Applicants by the MUA.

• [10] Evidence for the Respondent was given by Mr Scott Eadie, General Manager Operations Sydney[7] and Mr Benjamin Charles Hanley, General Manager Operations Brisbane[8]. Mr Hanley and Mr Eadie also relied on their statements in the valid reason proceedings and were cross-examined in relation to those statements and their statements in the present proceedings.[9]

• [11] The central argument advanced in the case for the Applicants represented by the MUA in relation to valid reason was that the Mandate was not a lawful and reasonable direction because DP World did not comply with its consultation obligations under the Work Health and Safety Act 2011 (NSW) and Work Health and Safety Act 2011 (Qld) (WHS Acts) which are in identical terms, as well as obligations under the DP World Sydney Enterprise Agreement 2020 (Sydney Agreement) and the DP World Brisbane Agreement 2020 (Brisbane Agreement) (collectively the Agreements) to consult about changes to workplace health and safety matters. Accordingly, it was contended that dismissal for failure to follow a direction that was not lawful and reasonable, could not be for a valid reason. The MUA did not assert failure on the part of DP World to consult under the provisions of the Agreements dealing with consultation in relation to workplace change.

• [12] This argument was based on the contention that the decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[10] (Mt Arthur Coal) is dispositive of the issue for determination, and that if I followed that decision, as I was required to do, "DP World loses". In this regard, the MUA asserted that:

• The Site Access Requirement (SAR) considered by the Full Bench in Mt Arthur Coal has the same effect as the Mandate in the present case;
• The Full Bench in Mt Arthur Coal found that the SAR was not a lawful and reasonable direction due to a failure on the part of the employer to comply with consultation obligations under the same terms of the WHS Acts relevant in the present case;
• The consultation engaged in by the employer in Mt Arthur Coal was comprehensive compared to a total lack of consultation engaged in by DP World; and
• Consistent with the decision of the Full Bench in Mt Arthur Coal, I am bound to find that failure on the part of employees to comply with the Mandate is not a refusal to follow a lawful and reasonable direction and therefore does not constitute a valid reason for dismissal as encompassed in the consideration in s. 387(a) of the FW Act.

• [13] The self-represented Applicants raised various additional issues relating to the lawfulness and reasonableness of the Mandate. These can be broadly categorised as: medical and scientific issues, going to the efficacy, effects and the approval of various vaccinations for use; legal issues said to arise under Australian and international law; and practical issues including the necessity of implementing the Mandate and whether other control measures could have been taken to mitigate the risks of COVID - 19 to the Respondents' workforce.

• [14] In the Valid Reason Decision, I concluded that the Mandate was objectively a valid, sound, and defensible response to the circumstances confronting the Respondents in September 2021 and that failure on behalf of the Respondents to consult employees as required by the terms of WHS Acts and Agreements, did not of itself necessitate a conclusion that a failure to comply with the Mandate was not a valid reason for the dismissal of the Applicants. In reaching this conclusion I considered, among other matters, the findings of the Full Bench in Mt Arthur Coal that the content of any specific requirement to consult is determined by context, including the circumstances in which it arises and that circumstances may dictate a quick result. I also concluded that the failure of each of the Applicants to comply with that direction was a valid reason for dismissal in each case. My conclusions were based on the following findings:

"[518] Contrary to the submissions of the MUA the relevant point for considering whether there was a valid reason for dismissal is the date on which the Applicants were dismissed and not the date the Mandate was announced or implemented. In the case of the Sydney Applicants no dismissal took effect before 25 October 2021 with the majority taking effect on that date. In the case of the Brisbane Applicants no dismissal took effect before 8 November 2021 with the majority taking effect on 17 November 2022.

[519] I accept the comprehensive evidence advanced by the witnesses for DP World about the factual scenario that existed at the time the dismissals were effected. While the MUA witnesses and the self-represented Applicants took issue with the emphasis or weight that should be placed on those facts, no fact of any significance was disputed. The overwhelming weight of the evidence, which I do not repeat, establishes that at the time the Mandate was introduced and the dismissals were effected:

• The Respondents operated 1/3 of the container terminals in Australia and its operations accounted for 42% of the National market share and 35 - 40 % in the East Coast Ports.
• The economic and social costs of DP World not operating or being impacted at this time could have been devastating in terms of supplies of goods which included essential supplies of food and medical items as well as necessary goods to keep industry working and Australians employed.
• In the second half of 2021, Sydney experienced an outbreak of COVID-19 caused by the Delta variant of the SARS-CoV-2 virus. The Delta variant was generally accepted to be more transmissible than the original ("Alpha") form of the virus and appears to have had more severe health impacts.
• From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order with close contacts required to isolate for up to 14 days.
• On or around 15 September two employees at DP World Sydney tested positive for COVID - 19 which resulted in 35 employees being required to isolate at home for 14 days and another 53 employees being required to isolate until they received a negative PCR test graphically illustrating the effect on the Respondents' operations.
• This effect was compounded by the impact of restrictions on movement for unvaccinated persons outside local government areas which comprise a significant proportion of DP World Sydney's Workforce.
• The potential for such impact increased by the point that the Sydney dismissals took effect because of changes to the contact tracing requirements effective from 21 October which meant that unvaccinated persons were required to isolate for longer periods than those who were vaccinated.
• It was likely that cases in Queensland would increase exponentially when borders opened and similar restrictions to those applicable in New South Wales may have been imposed at any time given the fluidity of the situation.

[520] In short compass, there were compelling reasons for DP World to introduce the Mandate and it is not to the point that other stevedoring companies did not take similar steps. It is also the case that consistent with the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal, vaccination was the most effective control to manage the adverse impacts of the virus.

[521] While consultation did not meet the requirements of the WHS Act and arguably the Enterprise Agreements, this is swamped by the contextual and factual circumstances demonstrated in the evidence before me. Any deficiencies in consultation are not determinative of whether there was a valid reason for the dismissal of the Applicants. This finding does not preclude a subsequent conclusion that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which will fall for consideration under ss. 387(b) - (h)."

• [15] I also rejected the arguments raised by the unrepresented Applicants. The MUA on behalf of the represented Applicants maintained in these proceedings that the failure of the Respondents to comply with consultation requirements meant that the dismissals were unfair because the Applicants were not given an opportunity to respond to reasons for their dismissals as provided in s. 387(c) and that there were mitigating circumstances relating to lack of consultation and the impact of dismissal on the Applicants as provided in s. 387(h). The MUA sought reinstatement of the represented Applicants contending that this would ensure that they are afforded an opportunity to consult with the Respondents in relation to workplace health and safety consistent with the Respondents' obligations when the Mandate was introduced. The unrepresented Applicants also seek reinstatement.

• [16] The following correspondence is common (or substantially common) to all applications or to multiple applications. All employees of the Respondent were notified on 16 September 2021, that DP World had decided to make vaccination against COVID-19 a condition of their engagement. This advice was conveyed by an announcement set out in an email from the CEO of DP World, Mr Andrew Adam, to all employees headed "DP World Australia COVID - 19 Vaccination Mandate" (Mandate announcement) which included the following information:

"Consistent with the Australian Government's advice, COVID-19 vaccinations are a safe and effective form of protection for our people and the community to reduce transmission and associated serious health impacts. It also plays a critical role in our road map towards living with COVID-19, along with other safe measures. We have been strongly encouraging vaccination and we are pleased that so many of you have already taken up the opportunity to receive a vaccination as priority workers, along with family members.

DP World Australia has been reviewing our risk controls to ensure the ongoing safety of our People and maintaining operational continuity to keep vital supplies moving across the Australian supply chain. We have made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Across all DP World Australia businesses, employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021."

Whilst some people will be unable to receive a vaccination due to medical contraindication, we expect these cases to be very rare. This decision has not been made lightly, however is essential in ensuring the safety of our People and ensure business continuity.

We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy.

With your continued ongoing support, we can all stay safe together."[11]

• [17] On 5 October 2021, a further email was sent to the workforce by Mr Adam including updates on the requirements of the Mandate and the dates for compliance (second Mandate announcement), as follows:

"DP World Australia COVID-19 Vaccination Mandate

Following on from our recent announcement to mandate COVID-19 vaccination for all employees, I would like to provide an update on our progress, along with confirming relevant updates from State Governments.

Our priority remains the safety of our People, contractors and the community as we transition to living with COVID.

The recent positive COVID-19 cases across multiple sites and Health Guidelines in New South Wales have highlighted and reinforced the key role vaccination status plays in reducing risk exposure in relation to testing and isolation requirements for employees who are exposed in the workplace. This has an impact on our ability to maintain business continuity.

In addition, both the Western Australian and Victorian governments have moved to mandate vaccination for our People through relevant State Health Orders, which is consistent with our approach.

I would like to thank all those employees who have obtained vaccination and submitted your COVID-19 digital certificates as confirmation.

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021.

Those employees who do not provide first dose status by 9am, Friday 15 October 2021 will not be allocated to work from Saturday 16 October 2021.

Given the delays Queensland has had in moving to vaccinate people compared to NSW and Victoria, we have made the following minor adjustment to dates to finalise vaccination.

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 29 October 2021 and for their second dose by no later than Friday, 26 November 2021.

Those employees who do not provide first dose status by 9am, Friday 29 October 2021 will not be allocated to work from Saturday 30 October 2021.

We have already commenced consultation with employees about the implementation of our decision and health and safety representatives, which will continue across the upcoming weeks and enclose some Frequently Asked Questions for your reference.

With your continued ongoing support, we can all stay safe together."[12]

• [18] A majority of the Applicants referred to these Mandate Announcements and there is no evidence that any of the Applicants did not receive them.

• [19] On or around 3 October 2021, some of the Sydney Applicants - Mr Tosh, Mr Lewis, Ms Richards, Mr Danny Tanielu and Mr Pintley - sent a common response to the Mandate Announcement to DP World Sydney, addressed to Mr Eadie and the HR Team, by email in the following terms:

"On 23/24 July 2021 Prime Minister Scott Morrison made a statement to the media and Australia concerning informed consent. In this statement the PM made it clear that in Australia: "We are all responsible for our own health ... That in our country 'people make their own decisions about their own health and their own bodies AND THAT IS WHY WE DON'T HAVE MANDATORY VACCINATIONS ... "

● It is a long-established principle of law that consent cannot be given in circumstances of

● If I were able to freely choose at this time I would not elect or choose to being injected with any of the currently available Covid-19 vaccines.

● You are interfering with my freedom to decline a Covid-19 vaccine by threatening me with loss of employment if I do not provide evidence to you that I have been injected with a Covid-19 vaccine.

● Your threat to me that I will lose my employment if I am not injected with a Covid-19 vaccine may amount to unconscionable and illegitimate economic duress, by you, upon me.

● In the Australian Government's Immunisation Handbook under Section 2.1.3 Valid Consent, it states that for consent to be legally valid "It must be given voluntarily in the absence of undue pressure, coercion or manipulation."

● Consent to a medical procedure requires the patient or recipient, after being informed of the risks and benefits of the procedure, is able to freely choose to undergo or decline the

The threat contained within your correspondence is exerting economic duress upon me by forcing me to choose between participating in a Covid-19 vaccination clinical trial, or to lose my job

In the circumstance of economic duress being exerted upon me by you I am unable to provide consent to be injected with a Covid-19 vaccine, as duress vitiates consent.

Performing a medical procedure upon another person, absent the recipient's consent, can amount to the criminal offence of battery, and or the tortious offence of trespass against the person.

In circumstances where consent has not, or cannot be given, the person performing the procedure may be liable both criminally and civilly. This liability is likely to extend to any individual that is exerting unconscionable and illegitimate pressure, such as economic duress, upon a person's ability to decline a medical procedure.

The threat contained in your correspondence is also causing me an apprehension of a battery. This apprehension may constitute an assault.

Please note that the Courts offer protection for people apprehending violence against their person.

Protection includes issuing apprehended violence orders and restraining orders against individuals threatening violence. Violence can include exerting economic duress upon a person if they do not submit to a battery.

● On 22 February 2021 the Federal Minister for Health Greg Hunt MP described Australia's Covid- 19 vaccine rollout as being part of a global clinical trial.

In ordinary circumstances I would not consent to participating in a clinical trial, the

pressure you are exerting upon me is affecting my ability to decline participation in this

● The Covid -19 vaccines being trialled in Australia do not provide immunity against the SARS- CoV-2 virus or any of its variants. Nor do the vaccines prevent transmission.

I would not consent to a medical procedure that does not provide protection against

infection. This presents to me an unnecessary health risk for no perceived health benefit.

The pressure you are exerting upon me is negating my ability to decline this medical

● There are anti- viral treatments available that provide protection against SARS-CoV-2 and that also treats the symptoms of Covid-19.

I would consider using these alternative treatments, that have proven to be safe and

effective over a long period of time, before taking any of the currently available Covid-19

● Covid-19 has not proven to be a significant threat to human health on a nationally significant scale. Only a very small portion of Australia's general population is at risk of becoming seriously unwell from Covid-19; namely the elderly and the already sick. The average age of death from Covid-19 in Australia is over 80 years of age.

I am not part of the very small portion of the general population who are at serious risk

I am considering all legal protections available to me, including restraining orders, to protect my rights and to protect my person against your assault and threat of battery through the unconscionable and illegitimate economic duress contained in your correspondence, which is affecting my freedom to decline a Covid-19 vaccine.

I note the following information published by the Therapeutic Goods Administration on behalf of the Australian Government Department of Health:

● The Australian Public Health Assessment Report for BNT162b2 (mRNA), with Propriety

Product Name: Comirnaty, and Sponsor: Pfizer Australia Pty Ltd, dated January 2021.

● The Australian Product Information Sheet for the Pfizer vaccine above.

● The Australian Public Assessment Report for ChAdOx1-S, with Proprietary Product Name:

COVID 19 Vaccine AstraZeneca, and Sponsor: AstraZeneca Pty Ltd, dated February 2021.

● The Australian Product Information for the AstraZeneca Vaccine above.

● Approvals were given without complete safety and efficacy data being available.

● The long-term safety and efficacy of these vaccines are unknown.

● The duration and effect of vaccine protection from these vaccines are unknown.

● Vaccine efficacy against asymptomatic infection and viral transmission is unknown.

● The concomitant use of these vaccines with other drugs and vaccines is unknown.

● Vaccine data in pregnant women and lactating mothers is unknown.

● Vaccine efficacy and safety in immunocompromised individuals is unknown.

● Vaccine efficacy and safety in paediatric subjects ( 85 years old) is unknown.

● A correlation of protection has yet to be established. The vaccine immunogenicity cannot be considered and used as the surrogate for vaccine protective efficacy at this stage.

● The novelty of the mRNA technology and its possible effects are unknown.

● The real-world vaccine effectiveness when these vaccines are rolled out to a larger and more diverse population is largely unknown.

● The vaccine companies' trial and study documentation and the surveillance data from

overseas reveals numerous adverse health events linked to the vaccines including

hypersensitivity, anaphylaxis, anxiety related reactions, increased triggers for autoimmune

disease, thrombocytopenia and coagulation disorders, exacerbation of neurological events,

● The biggest risk with both vaccines is auto-immune response. From an immunology

perspective, the antibodies may be 'tricked' into destroying otherwise healthy cells when

● Previous coronavirus vaccines have never passed the pre-clinical stage. SARS-CoV vaccines

were tested in a number of animal trials conducted which resulted in consistent auto-immune reaction outcomes. Furthermore, the m-RNA vaccines have not been used on humans before.

● The disease COVID-19 presents a 99.9% rate of full recovery for those under 70 years of age with no serious co-morbidity. Directing and/or mandating vaccines on the whole population given these statistics is a disproportionate response.

● It remains unclear if any or sufficient insurance cover will be available in the event I suffer

injury, and in the absence of a comprehensive no fault vaccine injury compensation scheme,

there is a real likelihood that I may not be compensated.

● The vaccine companies have a history of criminal conduct including charges and convictions for illegal marketing, bribery and health care fraud.

● The Australian Government has made it abundantly clear that vaccination against COVID-19 will be voluntary for the Australian public and no disincentives will apply (e.g. denial of financial benefits) to those choosing not to get vaccinated.

● Alternative controls are available to employers and occupiers to maintain occupational health and safety and public safety.

I further note that numerous laws, regulations and policies protect the right of informed consent in receiving a vaccine or any medical procedure, including but limited to:

● The Commonwealth Constitution s.51(xxiiiA) which prohibits civil conscription into medical and dental services.

● The Biosecurity Act 2015 (Cth) s.95 prohibits the use of force for vaccination.

● The Biosecurity Act 2015 (Cth) s.92 prohibits vaccination or treatment without an individual Biosecurity Control Order with stringent requirements.

● Article 6 of the UNESCO statement on Bioethics and Human Rights, Section 1, states "Any

preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice".

● Nuremberg Code, Article 1, states "The voluntary consent of the human subject is absolutely essential".

● The Siracusa Principles, adopted by the UN Economic and Social Council in 1984 provide

authoritative guidance on government responses that restrict human rights for reasons of

public health or national emergency. These Principles state that measures taken to protect

the population that limit people's rights and freedoms must be lawful, necessary, and

● Section 83.4 of the Criminal Code Act 1995 (Cth), which relates to interfering with political

liberty states "Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person of any political right or duty shall be guilty of an offence".[13]

• [20] Following the general Mandate Announcement, Mr Eadie caused a letter to be sent to all Sydney Applicants on 12 October 2021, the content of which in most cases was identical, reminding employees of the requirements of the Mandate. The 12 October letter (Sydney information letter) stated:

"Important information about your employment - vaccination information is required urgently

As you would be aware, DP World has initiated a range of safety measures to minimise the risk of COVID-19 to our workforce.

This includes mandating vaccinations for all employees and contractors from 15 October 2021. Andrew Adam, CEO, communicate this decision and the reasons for it, in an email to all employees on both 16 September 2021 and confirmed this again in an email on 5 October 2021. If you have any questions about this decision I would refer you to those communications, which also included an FAQ.

We have also communicated this request to you via bulletins emails, we have not yet received your vaccination confirmation.

DP World must confirm the vaccination status of all employees and where you have only had your first dose, the booking date for the second dose. The dates for compliance and the requirements are set out below.

By 9am 15 October 2021, you must provide DP World with either:

- A certificate demonstrating you have had one vaccine dose AND a booking for a second dose

You must have had your first vaccination dose by 15 October 2021 and your second by 15 November 2021.

If you have an exemption from a medical practitioner, this must be supplied urgently to DP World and before the due date above.

Supplying your vaccination certificate and/or other information

If you have not done so, you need to submit your certificate urgently to pbt.humanresources@dpworld.com.au

If you have any questions, please send them to: pbt.humanresources@dpworld.com.au

Privacy and confidentiality of your information

DP World are collecting this information for the purposes of confirming compliance with our vaccination directive. Understanding your vaccination status is reasonably necessary. Information is stored securely and confidentially by human resources in and is only accessible to HR personnel at your site.

We have confirmed the data storage arrangements comply with our security protocols and is encrypted,

This information will not be disclosed to any third parties without your consent.

Alternative work arrangements for persons who are not vaccinated

DP World will not be providing alternative work arrangements. We expect our employees to be in a position to continue to present for work after 15 October 2021 and be allocated to the full range of usual duties.

We are committed to proceeding with our vaccination mandate, it is our genuine wish that you do everything possible to comply with the directive.

The direction is lawful and reasonable and is designed to ensure that we can adequately manage the safety risks and continue our operations. You will not be able to work at DP World if you fail to comply with the requirements above by the due date.

If you are experiencing genuine hardship in complying with the directive you may request one (1) additional week of annual leave (if you have an available balance) to permit you to obtain your vaccination by no later than 24 October 2021 / 21 November 2021. If you have no paid leave you may request to be placed on leave without pay for the week. Any request for Annual Leave needs to be made via Microster.

If you have not supplied information by the above date and do not make a request for approved leave, you will be required to provide reasons why your employment should not be terminated by no later than 5pm, 18 October 2021, emailed to ...humanresources@dpworld.com.au

If you have any questions or need assistance in understanding how you can comply with these requirements, please email ...humanresources@dpworld.com.au ..."[14]

• [21] The Sydney information letter did not address the matters raised in the common response sent by some of the Sydney Applicants.

• [22] The Brisbane Applicants were sent substantially the same letter by Mr Hanley on 12 October 2021 (Brisbane information letter) with later deadlines of 29 October for a first dose of vaccine and 26 November for the second dose, and requiring information in relation to the first dose to be provided by 28 October 2021.[15] The Brisbane information letter also stated that if the Brisbane Applicants did not provide the requested information by 9.00 am on 28 October 2021 or request a week of leave, they would be required to show cause, by 5.00 pm on 1 November 2021, why their employment should not be terminated. Mr Hanley caused a follow-up email to be sent to the Brisbane Applicants on 26 October 2021 from Mr Greg Muscat (Human Resource Manager) regarding their vaccination status (second Brisbane information letter). That email appended the Brisbane information letter that had been sent to each of the Brisbane Applicants on 12 October and informed them that evidence of their COVID-19 vaccination had not been received and that any employee who did not provide evidence by 9.00 am on 28 October 2021 "will not be allocated any further (sic) including (Closed port day - Tuesday 2/11).[16]

• [23] On 19 October 2021, Mr Eadie caused letters to be sent to each of the Sydney Applicants on the basis that they had not complied with the direction set out in the Mandate and the Sydney information letter and inviting them to "show cause" as to why their employment should not be terminated (Sydney show cause letter). The Sydney show cause letter required that employees respond in writing by 22 October 2021. The content of the Sydney show cause letter was generic and did not include any reference to the common letter sent by some of the Sydney Applicants on or around 3 October 2021.

As you will be aware, vaccination against the Covid-19 virus is now a condition of employment at DP World.

This has been communicated in various ways to all employees, including through emails sent by Andrew Adam, CEO, on both 16 September 2021 and 8 October 2021. DP World followed this with letter on 12 October 2021 which advised that the vaccination deadline was approaching.

[You responded in writing by email on [details inserted], indicating you would not comply with the vaccination requirements that have been set out to you. The email is attached.]

[The Company has received no response from you to date]

Next Steps - Possible Termination of Employment

In the circumstances DP World invites you to provide reasons why it should not terminate your employment, on the basis that you are unwilling to comply with the requirement to be vaccinated and can no longer meet the requirements for performing work. You may provide this information in writing by providing a response to: [email] by 5:00pm Friday 22 October 2021.

Subsequent to this, DP World will make a determination regarding your employment based on the information available to us.

Please contact me if you wish to discuss this letter.

• [24] The Brisbane Applicants were sent a show cause letter by Mr Hanley on or around 2 November 2021 (Brisbane show cause letter) in essentially the same terms as the letter sent to the Sydney Applicants. The Brisbane Applicants were required to respond to the show cause letter by 5 November 2021. Most Brisbane Applicants' show cause letters additionally included the following statement:

"Please note as advised in correspondence from the Company you will are no longer being allocated to work from Saturday 30 October 2021."[18]

• [25] The show cause process in relation to the Brisbane Applicants was delayed pending the outcome of an application to the Federal Court made by a group of employees, including all of the Brisbane Applicants in these proceedings, except for Mr Troy Williams,[19] in relation to the proposed termination of their employment. The Federal Court proceedings were foreshadowed by a letter sent by Green & Associates on behalf that group, on 28 October 2021, after the Brisbane information letter was sent to the Brisbane Applicants, and before 2 November 2021 when they were requested to show cause as to why their employment should not be terminated. That correspondence was in the following terms (emphasis added):

"RE: DP World COVID-19 Mandate - Employment Dispute

We act for Shaun Cox, Zoltan Nemeth, Grant Tuhakaraina, Kevin MacDonald, Sheldon Wright, Richard Taylor, Johnathan Clarke, Mickey Harris, Nicholas Wallace, Steve Orel, Carlo Fern and Jamie Edwards ("the Group"), who are all employed at the Fisherman Island Terminal ("the Terminal"). As such, kindly direct all future correspondence to the writer.

We write regarding the proposed COVID-19 vaccine mandate introduced by DP World Brisbane Pty Ltd ("the Company"). We have read, inter alia and in general terms, the following documents issued by the Company worth noting:

- Respective letters of offer / employment agreements of the Group;

- COVID Vaccination Mandate FAQ document dated 29 September 2021;

- Correspondence sent to the Group regarding the mandate;

We note an effective "show cause" deadline has been set at 5pm on 1 November 2021. You should take this correspondence as a submission in that regard on behalf of each member of the Group.

We preface this submission by making it clear at the outset that our clients' intention is not to be adversarial or confrontational, but rather, to express their well-founded and deep, genuine concerns about the vaccine mandate (only) proposed. A number of them have their own health issues, and have experience first-hand the damage of adverse reactions, yet still wish to navigate what is arguably a grey area through to a practical and fair solution. Existing medical conditions of group members range from blood clotting, hypertension and blood pressure, right through to helicobactor pylori and other bowel and liver complications, respiratory complications and even joint problems, even before having taken a vaccine, and some have immediate family members who have suffered terribly as a direct result, to the point of hospitalisation.

In addition to this, the following are noteworthy factors regarding the particular circumstances of the employment of the Group members:

1. They have all continued to work on site through both the 2020 and 2021 lockdowns, with little to no change to their roles.

1. The only safety measures that have been introduced for them have been hand sanitiser and the wearing of masks. The latter has not been enforced.

1. Sometimes, but not always, they had to wait until the workers coming off shift had vacated the area before they went in.

1. Neither rapid antigen testing, nor any other available safety measures, have been employed or proposed (which members of the Group have in fact even offered to pay for). That includes COVID-19 testing.

1. Despite mentions from the Company, and requests by members of the Group, no COVID-19 safety management plan, studies, enquiries or the result of same have been made available.

1. Generally, all wait for a ship to arrive from international waters. The ship is berthed and the passengers do not disembark. Group members then board the vessel to unlash the bays, sometimes turn the reefers off, and discharge the containers. There is no contact between Group members and vessel staff during this process. The containers are then dropped on the port, loaded by a robot crane and taken elsewhere. Again, there is no contact with anyone outside the Group.

1. There have been no COVID-19 positive results or issues within the group.

1. A vaccine is not a precondition to ongoing eligibility for a MSIC card.

In light of the above, with respect and without criticism, ostensibly the situation could be managed quite easily with the introduction of mask-wearing enforcement, gloves and other PPE equipment, rapid antigen testing and regular COVID-19 testing. Instead, the Company has opted for a rather extreme, unnecessary and frankly dangerous option, whilst maintaining the following counterintuitive and inconsistent stance:

1. The stated incident the measure is taken in response to what occurred in Botany, NSW, not even Queensland. Reading between the lines, it appears workers connected to that incident returned to work unvaccinated before the mandate was even flagged across the board.

1. The Company has openly acknowledged that 'despite some disruption on our Port Botany terminal, we have maintained operations and delivery'.

1. Business performance has continued to improve, despite the COVID-19 pandemic. That has occurred now for over eighteen months, in circumstances where the vast majority of the workforce was unvaccinated.

1. There were 3,288 interactions between people for the year to date to end-July 2021 (an increase of 1%), yet a 20% reduction in reportable injuries.

1. The Case Response procedure allows for instances where even someone diagnosed or experiencing symptoms can remain onsite, provided they are given gloves and a mask.

1. The Case Response procedure also does not provide for the termination of workers who have had COVID-19, but rather only workers who have not had it and who are unvaccinated (albeit at little to no identified risk of being exposed).

1. The Company has openly stated it will continue to use unvaccinated third party contractors for services post-mandate, where their services can be provided contactless or without interaction, such as truck drivers (notwithstanding truck drivers have a higher propensity to touch cargo and interact with people than the Group does).

1. There has been an open refusal to adopt rapid antigen testing, which is arguably the best method to eliminate risk on both sides. This is unsupported by any explanation.

1. The Company's position is that the risks associated with remaining unvaccinated remain far greater than for those subjected to adverse reactions, but again, this is unsupported by any evidence or reasoning.

There is a consistent theme in the materials published by the Company that its view is that the mandate is required in order to comply with workplace health and safety laws. Notwithstanding, it refuses to accept any liability for an adverse reaction suffered by an employee for what will in truth amount to, in substance, and in the present economic circumstances, economic duress or, failing which, constructive dismissal, and worst still, at a transitional period where the orders in place under the Public Health Act 2005 (QLD) cease to have effect, and vaccines will not be a legal requirement (nor are they now), but rather a conscious choice of the employer.

While we appreciate employers have a duty and legal obligation in terms of OHS and workplace laws, the following also needs to be understood, especially for people with a proven genetic disposition to adverse reactions (if only by reason of a family members sharing genetic makeup suffering an adverse reaction):

1. Employers have a duty to provide work for their employees (see for example Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539). In this case, the proposal would have the effect of depriving the Group of work (unnecessarily).

1. Employers have a duty to act reasonably, which has extended to refraining from the unnecessary mandating of intrusive medical interference (see for example Anderson v Sullivan (1997) 78 FCR 380).

1. Employers have a duty of care to avoid exposing employees to unnecessary risk of injury (see for example Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62). In this case, this is the "flipside of the coin".

1. In circumstances where a vaccine is not necessary (as outlined above), and where no public health order or other law is in place requiring it, but rather, the common law above leans heavily against it, to terminate my employment on account of vaccination status would amount to discriminatory adverse action, contrary to s 352 of the Fair Work Act 2009 (Cth) (both on the basis of physical disability or political opinion), in addition to a number of other workplace health and safety laws.

1. The nature and manner of the proposed mandate appears to be in contravention of section 21 of the DP World Brisbane Enterprise Agreement 2020 itself.

1. The nature and manner of the proposed mandate also appears to constitute bullying and / or adverse action, both of which are actionable under the Fair Work Act 2009 (Cth), whether the termination occurs or is constructive. Note a successful action on the part of any Group member could include reinstatement, anti-bullying orders that reshape the approach taken across the board, the payment of uncapped damages (vis-à-vis the unfair dismissal provisions), and potential civil penalties.

1. Finally, while these cases are being heard and some have been publicly decided in favour of the employer, the ratio or principles espoused cannot be ignored, and will not apply for the benefit of any employer at all times. Specifically, Jennifer Kimber v Saphire Coast Community Aged Care Ltd [2021] FWCFB 6015 (27 September 2021) must be distinguished from this case on the basis that the Applicant there had constant contact with vulnerable persons, a public health order was in place mandating the vaccine for her industry, and the case therefore turned on medical evidence which was insufficient on her part. It was also brought and decided at first instance (pre-appeal) when much less was known about the virus, vaccines and adverse reactions. This case is entirely different, and we now live with much less risk given vaccination rates amongst the general public, less dangerous strains, much lower infection numbers and the alternative control measures available.

It is worth noting that several members of the Group were employed during the COVID-19 period, yet none of their employment agreements mention anything about a potential vaccine mandate. Others have been working since as far back as 2000. None of them now would be likely to find alternative suitable employment until the hysteria dies down, which could be a significant period, and could result in a substantial expectation-loss claim. Having said that, all agreements do make note of the fact that there are measures readily available to the Company to test their fitness for work, including drug testing and the availability of quick medical assessments, functional assessments and medical examinations. This lends credence to the solution proposed above, at least in a practical sense, given the capacity is already readily available without the need to change any workplace practices or capabilities to any great degree.

In light of the above, we respectfully suggest the mandate be withdrawn for the Group (who would be happy to be bound by confidentiality obligations), and instead, a regime including mask-wearing enforcement, gloves and other PPE equipment being worn at all times, rapid antigen testing, regular COVID-19 testing, social distancing where possible, separation of shift workers and no-contact measures with all third parties be adopted instead. We hereby put you on notice that, in the event that such an alternative arrangement is not agreed by 10:00am 29 October 2021, or any members of the Group are either terminated or stood down without pay, we reserve the right to approach the Federal Court or the Supreme Court of QLD seeking urgent relief (including injunctive or other interlocutory relief), together with damages and costs, and that such an application may be made ex parte if the circumstances require. In circumstances where one member of the Group is currently in hospital with a medical exemption and was been told he was still too late on 27 October 2021, prior to the Company's deadline, we are confident the Court will by sympathetic to our clients' cause.

This offer is made in accordance with the principles stated in Calderbank v Calderbank [1975] 2 All ER 333 and applied in, for example, MT Associates Pty Ltd v Acqua-Max Pty Ltd (No 3) [2000] VSC 163 at [109]- [149] per Gillard J and Messiter v Hutchinson (1987) 10 NSWLR 525 per Rogers J. In the event that this offer is not accepted and, as we anticipate, judgment is awarded in favour of our clients on terms more favourable to the above, our clients will rely on this letter in support of an application for costs on the indemnity basis from the date of this letter. For the avoidance of doubt, those costs will include the professional fees and disbursements of this Firm, in addition to those of counsel.

• [26] In a letter dated 29 October 2021, Seyfarth Shaw Australia on behalf of DP World Brisbane, responded to this correspondence, in the following terms:

"As you know, we act for DP World Brisbane Pty Ltd.

We refer to your letter of 28 October 2021. We are instructed to respond as follows.

At a high level, your clients' position is built on assumptions that Queensland is somehow immune from the difficulties created by COVID-19 elsewhere, and that what has occurred in the past is a reliable guide to the future. Neither is correct.

Queensland has fortunately avoided mass outbreaks of COVID-19, but this could occur at any time, and several incidents could have escalated from a small number of cases, as they did in Sydney and Melbourne. By the time this actually occurs, it is far too late to do anything about it.

Further, a large part of Queensland's current position owes to its current border closures. That will not continue indefinitely, and when it does, COVID-9 will inevitably circulate in the community. DP World must address that issue, and it must do it before these matters become significant safety risks and threats to operational continuity.

At the outset, you say that members of the employees for whom you act (the Group) "have their own health issues" and experience of adverse vaccine reactions. Your letter pays no regard, however, to the fact that DP World's vaccine mandate exempts employees who are entitled to have a vaccine exemption recorded on the Australian Immunisation Registry.

In other words, if your clients were genuinely unable to be vaccinated for medical reasons, they would not be required to be vaccinated. As the vague wording of your letter suggests, the Group are making choice not to be vaccinated, for reasons best known to themselves. They of course have that choice, but they are not immune from its consequences.

In relation to your other comments about the particular features of your clients' employment (using your numbering):

(ii) It is not correct that the only safety measures introduced have been the use of hand sanitiser and mask-wearing. DP World developed and continues to refine a comprehensive COVID Response Plan, and implemented a comprehensive suite of safety measures including, without limitation and in addition to those named:

• social distancing;
• staggered starts;
• employees being allocated to the same machine for the duration of a shift to avoid cross-over;
• reduced manning in vehicles;
• keeping of passenger logs in vehicles;
• cleaning products and equipment being available and used to clean all machinery prior to shift commencement;
• increased cleaning by contract cleaners;
• operating "continuously" so that employees do not all take breaks at the same time.

It is not correct that mask-wearing has not been enforced. As notified to employees in a bulletin on 3 August 2021, employees who cannot wear masks for medical reasons have not been able to attend the workplace.

(iii) This measure was implemented and changed a number of times, in response to Queensland Health advice.

(iv) It is not clear what "other available safety measures" are referred to. We refer in any event to (ii) above. DP World considered rapid antigen testing and did not adopt it for a range of reasons, including its cost, reliability, and the availability of a superior control in the form of vaccination.

(v) The allegation that employees have not been provided with material despite repeated requests is utterly wrong. DP World has met with health and safety representatives (HSRs) on a monthly basis, and all of them have access to relevant documentation and information.

We are further instructed that DP World is only aware of one of the Group asking for any of this documentation. The response was made by Shaun Cox at about 9:00 am on 17 October 2021. The materials requested were provided at 12:23 pm the same day.

(vi) In the first instance, vessel crews are one among many vectors by which COVID-19 might enter the terminal, the main one being employees themselves who have acquired the virus elsewhere in their lives. In any event, it is wrong that employees do not have any contact with vessel crews:

• Employees' names are recorded by the vessel watchman at the top of the gangway when boarding a ship.
• Interaction with crews is required when discussing safety issues or other requests.
• DP World employees are not permitted to turn refrigerated (reefer) containers aboard a vessel on or off. This is done by vessel crews under the instruction of employees, during which there can be interactions between the two.
• Once vessel operations commence, if a twistlock jams, crew members may be engaged to assist the DP World foreman to free the fitting.
• Chief Officers of vessels can and occasionally do request to leave the vessel and access the wharf to check hatch covers, or the vessel structure, for safety reasons.

(vii) The fact that none of the Group have contracted COVID-19 is not to the point. Queensland has, fortunately, largely been spared the experience of NSW and Victoria, but COVID-19 will inevitably circulate in the community once State and international borders are further opened (if not before). As Sydney has demonstrated, it only takes one seeding event that is not properly controlled to start an outbreak.

(viii) This is irrelevant. MSIC cards are a security measure, not a safety control.

Going to the core of the matter, the notion that "the situation could be managed quite easily with the introduction of mask-wearing enforcement, gloves and other PPE equipment, rapid antigen testing and regular COVID-19 testing" is without foundation. DP World is required to ensure its own business continuity and, more importantly, "ensure, so far as is reasonably practicable, the health and safety of workers...": Work Health and Safety Act 2011 (Qld) s 19(1) (WHS Act). It is not sufficient that it is asserted (without any proper basis) that other controls could manage the risk of COVID-19 transmission, when the obligation is to ensure that risk is eliminated "so far as is reasonably practicable": WHS Act s 19(2).

What you describe as a "counterintuitive and inconsistent stance" is nothing of the sort. Specifically, and without any admission as to your comments not specifically traversed (adopting your lettering):

(a) It defies credulity to think that an incident of the kind that has occurred at Port Botany could never occur in Queensland. DP World is entirely prudent and within its rights to be guided by the experience of COVID-19 at a similar terminal. Your "reading between the lines" is nothing more than false speculation.

(b) It is entirely true that the Port Botany terminal continued operating. It did so under hardly ideal circumstances, and delays have resulted.

(c) This has no relevance whatsoever.

(d) There is no relevance in respect of reportable events, as your clients are aware we are not aware of any reportable injury relating to Covid-19 at the terminal, as yet.

(e) This is a gross mischaracterisation of the procedure, the employee is directed to leave site immediately or if they are unable to due to their medical condition, they are directed as an urgent interim step masks and gloves and wait in a designated room while the Company ascertain if ambulance or alternative transport is possible.

(f) The Case Response procedure is a safety document that sets out how DP World deals with management of COVID-19 suspected or actual cases on site. There is no suggestion made that it is a disciplinary issue warranting termination to contract Covid-19 and DP World has not taken any disciplinary action in other situations.

(g) All contractors have been advised of the requirement and are confirming their compliance, it is only in very low risk scenarios, being "contactless" where it is still strongly preferred but not mandatory for this group. DP World will not engage unvaccinated persons in a way that puts its workforce at risk. Contactless interactions are not possible as between DP World employees.

(h) There is zero explanation for your statement that rapid antigen testing is "arguably the best method to eliminate risk on both sides", whatever "on both sides" might refer to.

(i) The risk of COVID-19 transmission is a known factor, albeit one that is difficult to precisely quantify. All information available from reputable sources such as State health authorities, on the other hand, confirms that adverse reactions to vaccines are extremely rare. To imply otherwise is disingenuous.

We note at the outset that there is no substantiation of the implication that any member of the Group has "a proven genetic disposition to adverse reactions". No member of the Group has told DP World this is the case for them. If this were medically established, the employee in question could have informed DP World and provided evidence, and if it were properly medically substantiated, they would not be required to be vaccinated.

That it was not so established simply demonstrates that again, your letter relies on broad-brush assertions about employees' positions in circumstances where the more probable inference is that they have simply chosen not to be vaccinated.

DP World freely admits that currently, in Queensland, it is ultimately DP World's decision to require that only vaccinated persons (or those with properly substantiated medical contraindications) can work there. That is a lawful requirement to impose. Having made careful assessments of the risks concerned, DP World has determined that going forward, vaccination will be an inherent requirement of the job unless employees legitimately cannot have a vaccine. Employees still have the choice not to be vaccinated, but need to know that a corollary of that choice is that they cannot work as a DP World stevedore.

Going to the specific issues you raise regarding DP World's obligations and duties below (adopting your numbering):

(1) Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 dealt with the obligations of an employer that was subject to a reinstatement order of the Australian Industrial Relations Commission. It has no general application establishing a duty to provide work. Indeed, most employees do not have a contractual right to be provided work, as over 150 years of well-established case law confirms.

(2) Employees do not have a general "duty to act reasonably". Anderson v Sullivan (1997) 78 FCR 380 does not establish that they do. It is a case about whether a member of the Australian Federal Police was validly required to provide a urine sample for drug testing, which under the authorising legislation required a "reasonable suspicion" on behalf of his superiors. It is accepted that employees' duty to comply with directions extends only to "lawful and reasonable" directions, but that is only to re-state trite law.

(3) This proposition is trite. DP World is not, however, requiring employees with legitimate medical contraindications which exempt them from a requirement to be vaccinated to do so.

(4) The choice of an employee not to receive a free, available and generally safe vaccine is not protected by Part 3-1 of the FW Act. Given the medical exemptions contemplated by the DP World process, this complaint is without merit. Certainly DP World's actions are not prohibited by s 352, to which you refer, which prohibits dismissal of an employee due to a "temporary" absence from work due to illness or injury.

(5) DP World denies any breach of Part A, clause 21 of the DP World Brisbane Enterprise Agreement 2020 (Brisbane Agreement). It has consulted as required by that clause, noting that such consultation is to be done "as far as reasonable practicable" and without it necessarily being feasible to discuss even with every HSR, let alone every employee (clause 21.4.3). Given the lack of any other particularisation, this item neither requires nor permits a further response.

(6) The allegation that the mandate constitutes bullying is totally without foundation. Bullying requires multiple elements that are not present here - repeated conduct, the creation of a risk to health and safety, that the behaviour is unreasonable - and does not include reasonable management action carried out in a reasonable way. The notion that a bullying claim could need to the outcomes you name is totally wrong. Further, without any admission, adverse action per se is not unlawful - this is only so where it is engaged in for a reason set out in s 340, 346 or 351 (or for dismissal, s 352) of the FW Act. That is denied.

(7) This really only amounts to an assertion by you that DP World cannot assume any useful precedent is available to it. That really requires no response. It is however risible to say that there is now a better understanding of adverse vaccine reactions, or that we currently live with "less dangerous strains" of COVID-19, than in April 2021 when Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 was handed down.

Your clients have no viable claim to be released from DP World's lawful requirement that in order to access or work at its premises, employees must be vaccinated. It is not obliged to change a range of controls that it has determined after careful consideration merely because the Group may assert - with no evidence - that they have valid reasons not to be vaccinated and COVID-19 risks can be adequately controlled by other means.

As set out in our letter of 28 October 2021, we require that you give us at least 24 hours' notice of any proceedings that your clients commence. We are instructed to accept service.

On the same basis set out in your letter, we reserve the right to rely on this letter in relation to any question of costs."

• [27] On 5 November 2021, following the issuing of the Brisbane show cause letter, an application was made to the Federal Court on behalf of the Brisbane Applicants (other than Mr Troy Williams) in which it was alleged that the threat of adverse action had been made in contravention of the Brisbane Agreement and that there was a threatened breach of their employment contracts. An interlocutory injunction was sought restraining DP World Brisbane from terminating any of the Federal Court Applicant's employment because of a failure to provide evidence of vaccination against COVID-19 or not being vaccinated. DP World provided an undertaking to the Court that DP World would not dismiss those Brisbane Applicants pending trial. The Court dismissed the applications for interlocutory relief by a decision issued on 11 November 2021 and listed the substantive application for hearing in December 2021. Subsequently, the proceedings were discontinued by the Brisbane Applicants before trial and DP World was released from its undertaking on 16 November 2021.

• [28] Mr Ryan Williams commenced employment with DP World Sydney in August 2014 and had been employed for approximately seven and a-half years prior to his dismissal on 25 October 2021. Mr Ryan Williams was employed as a VSE under the Sydney Agreement. He was 37 years of age at the time he made his witness statement.[21] Mr Ryan Williams is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Ryan Williams sent an email on 18 October 2021 to DP World expressing that he held genuine concerns about COVID-19 vaccines and his hesitancy in relation to be vaccinated. That email, appended to Mr Ryan Williams' witness statement, was addressed to HR and in the following terms:

"I am writing in response to your email regarding vaccination mandate dated 12th Oct.

I have been employed by DP world since 2014 and during that time I have always fulfilled my duties and upheld my contract of employment. This is a difficult period of time for everyone and particularly for myself. Personally the decision by DP World to bring in a "vaccine" mandate has caused me much stress. It has also caused workplace bullying and division, which is totally unnecessary in our work place.

I believe it's a personal health decision that shouldn't be made by anyone other than the individual. If it's something that an individual chooses that's their right, but the choice should be made in accordance with the Australian Governments own guidelines which state it must be given voluntarily in the absence of undue pressure, coercion or manipulation. I would like to have that choice myself and not be coerced or manipulated by DP Worlds policy and the threat of termination if I don't get vaccinated.

I have worked the entire "pandemic" at DP World with no issues in regards to Covid-19, safe work practices and I have fulfilled my role as a Stevedore during this time as per normal. To now be told I'm unable to perform my duties at DP World, almost 2yrs later from the start of the "pandemic" makes very little sense to me.

The reasons for not terminating my employment, I've always been a loyal hardworking employee, never had disciplinary issues, still willing to work and don't want to be terminated. I hope that there can be an outcome that means I can continue working for DP World.

I would also like to be given access to the accrued leave I have, including long service, sick and annual leave. In time I believe this situation can be resolved."[22]

• [29] Mr Ryan Williams said that he did not receive a response to his concerns. On 22 October 2021, in response to the Sydney show cause letter, Mr Ryan Williams resent the email of 18 October 2021 to Mr Eadie as his reasons why DP World should not terminate his employment. Mr Ryan Williams did not receive a response to that correspondence and on 25 October 2021, received a letter stating that his employment had been terminated with immediate effect. Mr Williams did not tender either his show cause letter or the termination letter.

• [30] Under cross-examination, Mr Ryan Williams said that his letter states that he wants to have a choice to be vaccinated without his job being threatened but agreed that he had not told DP World why he might want to make a choice not to be vaccinated. Mr Ryan Williams also said that he had not received a call back from anyone at DP World and received only generic emails.[23] In response to the proposition that he had never told DP World why he did not want to be vaccinated, Mr Ryan Williams said: "they never asked".[24] In response to a question about why he wanted to take his accrued leave and what he meant by stating that in time, the situation could be resolved, Mr Ryan Williams said that he thought that DP World would change its position in relation to the Mandate when it became clear that "it wasn't a threat, or isn't a threat" and there was more evidence about vaccines and whether they were working.[25]

• [31] Mr Ryan Williams said that his wife's employment as a registered nurse was also terminated as a result of a government vaccine mandate[26] and that he and his wife had been living off their savings since his employment was terminated.

• [32] At the hearing, Mr Ryan Williams confirmed that he had been unemployed since his dismissal and said that he had not searched for other employment.[27] Mr Ryan Williams also gave evidence that at the time when he was dismissed, his annual salary was roughly $120,000 - $130,000. In cross-examination, Mr Ryan Williams accepted that other than the email of 18 October 2021, he had not provided any explanation to DP World Sydney as to why he made the choice not to be vaccinated. Mr Ryan Williams maintained that the choice of becoming vaccinated "should be voluntary...without being threatened to take my job"[28] and that before his dismissal, DP World Sydney "never spoke to me, they never had a meeting"[29].

• [33] In relation to remedy, Mr Ryan Williams confirmed that he is seeking reinstatement. In response to my question as to whether he would be in a position to comply with the requirements of vaccination given that the Mandate is still in place at DP World Sydney, Mr Ryan Williams' response was "I'm not sure to be honest"[30].

• [34] Mr Tosh commenced working at DP World Sydney (formerly Container Terminals Australia Ltd) then P&O in September 1999. Prior to the termination of his employment on 25 October 2021, Mr Tosh had worked for DP World Sydney and its predecessors for 22 years. Mr Tosh was 48 years of age when he made his witness statement.[31] Mr Tosh is a member of the MUA and was represented by the Union in these proceedings. In response to the 16 September 2021 Mandate announcement, Mr Tosh emailed a letter on 3 October 2021 to DP World management, a copy of which is appended to his witness statement[32]. That email (also sent by other Applicants in these proceedings) is set out above under the heading "Common Correspondence". Mr Tosh did not receive a response to this email.

• [35] In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Tosh sent an email on 18 October 2021 to DP World Sydney expressing that his concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Tosh relevantly stated:

"I have been a valued employee with DP World for over 20 years in which I have fulfilled many roles from RTG and Forklift operator, to Crane and Deck Foreman and as a regular EC Controller...

...I have no issue if someone else wishes to be vaccinated and feels it is the right choice for them, but at this point in my life I don't believe it is the right choice for my health. I have experienced severe depression and anxiety over the prospect of losing my job and perhaps my home if I don't get vaccinated and this duress and coercion has impacted my ability to make an unbiased and informed decision. I had a serious adverse reaction to a previous flu vaccination back in 2015. I had a severe anaphylactic episode and then developed pneumonia. I was very ill for 3 months. I have tried to seek an exemption from my Doctor but unfortunately this was not considered a "valid reason". I know my body and I am not prepared to put my health at risk again and definitely not with a vaccine that has only been authorised for emergency use and is still in its clinical trial period which doesn't end until the end of 2022/23.

... So in closing, at this point in time and after serious consideration for my health and others and the fact the vaccines don't stop transmission, I cannot currently commit to getting vaccinated due to my health reasons and I urge DP World to please reconsider its position on mandatory vaccination so I and many other loyal and valued employees may keep the job they love and rely upon to support their families."[33]

• [36] Mr Tosh did not receive a response to this email and on 21 October 2021 sent a further email addressed to "DP World PBT HR" reiterating his objections to the Mandate, as follows:

"I am replying in response to the company's most recent email regarding its unreasonable, unethical and unlawful vaccination mandate. I outlined my reasons for not currently being able to commit to being vaccinated in my previous correspondence so their (sic) is not much else I can say. But one thing I do know, being vaccinated was never a condition of my employment when I signed my employment contract with DP World 22 years ago and nor is it a condition of the most recent Enterprise agreement that determines the policies and procedures employees work under. I understand policies and procedures change over time but according to DP World's own employment contract, these policies and procedures do not form the terms and conditions of our employment. Please see attached copy of an extract of DP World's employment conditions. Lastly, if the government of Ireland can admit to serious side effects such as stroke, heart attack and sudden death from covid 19 vaccination, and the Australian prime minister saying, and I quote, "Australia does not have a mandatory vaccination policy". Then I don't see how any company can legally or ethically mandate it, without legal ramifications."[34]

• [37] On 25 October 2021, Mr Tosh was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice. Later the same day, Mr Tosh sent an email to DP World in the following terms:

I have been ready, willing and able to work everyday, before and after you stood me down from my duties at DP World due to your unethical and unlawful vaccination mandates. No where has DP World ever shown evidence of, or proven that a vaccine mandate would provide a safer work place for its employees. And as for your CARE PROGRAM, it would probably be the most laughable of all DP Worlds polices if it were not such a serious subject."

• [38] Under cross-examination, Mr Tosh agreed that he did not draft the initial letter he sent to the Respondent and said that somebody provided him with the document, possibly a colleague. Mr Tosh denied that he had downloaded the document from a website of an organisation calling itself "Reignite Australia".[35] Mr Tosh also agreed that he had sought an exemption from vaccination and his doctor would not provide that exemption. In relation to his assertion that he was surprised about being dismissed, Mr Tosh agreed that he received the Sydney information letter on 12 October requiring him to provide information about his vaccination status and the Sydney show cause letter on 19 October stating that if he did not comply DP World Sydney was considering terminating his employment. Mr Tosh also agreed that he knew DP World Sydney was considering terminating his employment because he had not provided evidence that he was vaccinated against COVID-19.[36] In re-examination, Mr Tosh said that he was surprised that he was dismissed because he did not think it was fair or lawful.

• [39] Mr Tosh was devastated to learn that DP World had terminated his employment. After the termination, Mr Tosh said he and his wife could no longer afford to pay their mortgage and were forced to sell their home of 11 years and move to Queensland[37] where it was more affordable. Mr Tosh said he had to leave his friends, extended family, and aging parents in Sydney. He had not imagined a future where he was not a stevedore with DP World. It was a job that he enjoyed and suited his skills and lifestyle. In relation to his house in Sydney which he had to sell, Mr Tosh said that they had spent money renovating the house and had planned to live there for the next 10 years. Losing his job, has turned the lives of Mr Tosh and his family upside down, and there is no way that Mr Tosh can see that they would ever recover financially from the loss of his employment. Mr Tosh said that this will affect them for the rest of their lives including by having an enormously negative effect on his expected superannuation income and he will undoubtedly feel the effects of losing his job with DP World in his retirement.

• [40] In June 2022, Mr Tosh purchased a Jim's Pool Care Franchise[38], because all of the training that he had completed in the last 20 years was suited solely to stevedoring and finding another position that fitted his qualifications and experience was proving extremely difficult. Mr Tosh has a mortgage and general bills to pay, and his business is not yet in a position to provide him with a wage, so his wife is currently working in a role that pays her half of what she earned in Sydney. Mr Tosh's wife is supporting him while he tries to build an income. Mr Tosh stated that his expected base rate of pay is about $500 per week, compared to $1,700 a week he had been earning while with DP World. A Profit and Loss Statement[39] tendered by Mr Tosh at the hearing, shows that his franchise business generated a net profit of $21,462.05 in the period between June 2022 and July 2023.

• [41] Mr Tosh confirmed in oral evidence at the hearing that when he was working for DP World, he was earning roughly $150,000 per annum[40]. Mr Tosh stated that financially it has been a struggle, and his personal life has also been very stressful. He said that his wife had also been "forced out" of her long-term employment of 10 years due to vaccine mandates, which has put a lot of stress on their marriage. Further, Mr Tosh gave evidence that he did not work in any other job prior to purchasing Jim's Pool Care and that despite his efforts in applying for a few different positions in Queensland, he was unsuccessful in securing other employment[41].

• [42] Mr Tosh said that he has emotionally, financially, and physically moved on with his life but strongly believes that he was unfairly, wrongfully and unlawfully dismissed by DP World and should be properly compensated for his losses. Mr Tosh confirmed that he continues to seek reinstatement, and that should the Commission reinstate him to his previous position with DP World, he would make a decision at that time whether to return to DP World or whether to continue to build his pool care business.[42]

• [43] Mr Grace commenced employment at DP World Sydney on 27 November 2006 and had been employed by the Company for 15 years at the time of his dismissal on 2 November 2021. Mr Grace was 51 years of age when he made his witness statement.[43] Mr Grace is a member of the MUA and was represented by the Union in these proceedings. When Mr Grace received the 12 October 2021 Sydney information letter, he had been absent from the workplace since August 2021, because of a workplace injury. In response to that letter Mr Grace sent an email to DP World Sydney on 15 October 2021, in the following terms:

"As DP World and Human Resources are aware, I have been unfit for work and thus on Workers Compensation since the date of my accident at work August 29th, 2021, which has been 7 weeks to date.

I am a little confused and need clarification regarding the Company correspondence requesting employees to be vaccinated by 15 October 2021.

As there are no provisions communicated for those employees who are currently on Workers Compensation, as I am, moreover, are not present at the workplace.

Additionally, I do not pose a threat to anyone at the workplace, vaccinated nor otherwise, as I am currently recovering from Home.

[Name] has copies of all my documentation pertaining to my workplace injury, namely Certificates of Capacity/Fitness from my GP, Dr Levin

Furthermore, my primary concern at present is the two bulging disks L4 & L5 in my lower back, that my Physio is currently trying to correct through physiotherapy and take pressure off my spine. This pressure is currently causing tingling in my lower limbs and could potentially require surgery to correct the bulging disks. A MIR (sic) scan is scheduled dependant upon my physio treatment.

I highlight the above to notify DP World that my physical condition is somewhat dire and could potentially mean surgery in the very near future, on my spine. This means, my travel is very limited and I am basically confined to my Home to recover.

Therefore, could you please advise upon the following:

1. What provisions am I subject to, given my current workplace injury under the Workers Compensation Act 1951?

2. Could you advise upon the current mandate and the repercussions upon employees currently on Workers Compensation, as we comprehend that DPW are only paying a certain percentage of our wages, however we are currently being compensated under Insurance. Could there be further clarification made to this matter.

3. Am I mandated under the same timeframes as non-workers comp employees and pursuant and defined under what EA 2020 Clauses, Workers Compensation Act 1987 and NSW Health Act Legislations?

Today, I have another appointment with my GP. I will know later today the verdict of a possible MRI scan and/or possible surgery."[44]

• [44] Mr Grace did not receive a response to his email of 15 October 2021. In response to the 19 October Sydney show cause letter from Mr Eadie, Mr Grace sent a further email on 22 October[45] reiterating that he had been absent from the workplace since 29 August 2021 because of his injury and was not "privy to the day-to-day dealings at the workplace regarding the new policy". Mr Grace also stated in his letter that for reasons, such as his injury, the potential surgery on his spine and the potential termination of his employment, he was under considerable pressure. Mr Grace requested clarification on his position in relation to the Mandate, and a meeting with Mr Eadie "to present [himself] in person to discuss the Mandatory Vaccination Policy and [his] options as an Employee on Workers Compensation."

• [45] In response to this letter, a virtual meeting was conducted with Mr Grace on 26 October 2021 which was attended by Mr Eadie and Ms Hucker-Stewart from HR. Mr Grace said that during that meeting he stated that he would contact his GP "to discuss a potential Medical Exemption to present by 5pm Monday 1 November 2021". Mr Grace's evidence was that Mr Eadie would have appreciated that at the time he communicated this information, Mr Grace was under "duress". In this regard, Mr Grace stated that his livelihood was at stake, and he was awaiting medical assessments for a potentially permanent spinal injury and surgery as a result of a work related injury in August 2021. Mr Grace was of the view that DP World did not allow sufficient time for him to discuss his health options with his GP.

• [46] Mr Grace also expressed the view that the Company would have appreciated that in order to obtain an exemption from a medical practitioner he would be required to undergo relevant medical testing and it would take at least thirty days, if not longer, to access medical procedures, such as blood tests or scans, from a GP or specialists and that a specialist appointment generally has a wait time anywhere from seven days to two months or longer. Mr Grace stated that unfortunately for him, DP World gave him five working days to provide his vaccination status or a contraindication letter, and this was impossible for him to provide and was the reason that he did not respond to or make contact with Mr Eadie on or before the deadline. Mr Grace believed that the timeframes he was given were not only unfair and unreasonable, but nearly impossible to comply with. Mr Grace also said that he anticipated that after the virtual meeting on 26 October 2021, he would be dismissed.

• [47] Mr Grace also said that he received a total of seven emails from DP World Sydney management during the relevant period regarding the Mandate, and four were "threatening the termination of his employment" if he did not adhere to the Mandate. Further, he engaged in communication with DP World Sydney in a period of 33 days about the Mandate, commencing October 2021, and within that period, none of his inquiries or concerns were addressed, discussed or clarified by the Company.

• [48] On 29 October 2021, the Company sent a specific letter to Mr Grace via email requesting that he provide his vaccination status or a contraindication letter by 1 November 2021. That letter was tendered by Mr Grace and stated that at the virtual meeting on 26 October, he had advised that he intended to consult his doctor on 30 October 2021 and requested that Mr Grace provide his vaccination status or a contraindication letter by 5.00 pm on 1 November 2021. Mr Grace did not respond to that correspondence and on 2 November 2021, received a letter from Mr Eadie notifying that his employment was terminated effective immediately and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice.

• [49] Mr Grace said that he resolutely believes that he was not provided with relevant information and clarification to his queries at any stage of the communications process by DP World Sydney management and that he was not given satisfactory timeframes to consult his GP and discuss his medical options and/or undergo any medical testing to obtain a contraindication letter before the deadline. Mr Grace stated that his workplace injury placed him in a vulnerable position during that time and he was disadvantaged at numerous levels as an employee on workers compensation by being prevented from gaining face-to-face access to support systems and personnel on the job site. Mr Grace said that he was disadvantaged in relation to his response to the reason for his dismissal because he had not been at work to attend any meetings or consultation in relation to the Mandate, or to access written correspondence in the form of newsletters or handouts given to employees in working hours, or to discuss relevant questions with management. Mr Grace was also unable to access workplace counsellors to discuss grievances or personal concerns or to seek assistance.

• [50] Under cross-examination, Mr Grace agreed he had known since 16 September 2021 that DP World was proposing to implement a vaccination mandate. Mr Grace accepted that the date that he was given by DP World Sydney to comply with the Mandate was a date he had selected.[46] Mr Grace also agreed that if he wished to discuss a matter with management while he was absent from work, he could have called and requested a discussion.[47] Further, Mr Grace accepted that there are no counsellors on site at DP World terminals, but employees could contact a third-party counsellor through an employee assistance programme.[48]

• [51] Since his injury, Mr Grace said he had to attend to numerous medical appointments, GIO insurance communications and meetings which meant that he was time challenged and unable to attend any onsite work meetings. In addition to the stress and "duress" experienced at that time, he said he has also faced financial stress and hardship.

• [52] In response to the termination letter by DP World, Mr Grace said that at no stage did he communicate with DP World his refusal to be vaccinated. Mr Grace said that he was unable to work due to his workplace injury and that he was never unwilling to work. Mr Grace said that he has a specialist report stating that he currently has a permanent injury to his lower spine as a result of his workplace injury and that not only was his termination unjustifiable and unfair but he was also left with a permanent injury that will, without a doubt, affect "all aspects of his life" including his livelihood, current and future health and wellbeing, his financial future and obligations and his independence. Mr Grace was still physically incapable of working at the time this matter was heard, due to his injuries.

• [53] Mr Grace said that DP World's response was disheartening and disappointing considering he was employed by DP World for 15 years. Mr Grace also tendered into evidence his tax return for the financial year between July 2021 and June 2022[49]. His tax return discloses that he had a taxable income of $90,255, including a termination payment of $14,881 in relation to his dismissal on 2 November 2021. Mr Grace accepted in cross-examination that he only provided his income statement to his accountant but not the records relating to his workers compensation payments, for the purpose of completing his tax return.[50]

• [54] In relation to his injury, Mr Grace's evidence is that because of his injury, he had not searched for other employment since his dismissal by DP World and that he continued to receive workers compensation payments at the time of the hearing.[51] Mr Grace said that a surgery for his injury was scheduled for September 2023 and "given time" he would be physically fit to meet the work requirements of DP World. However, Mr Grace also stated that his doctor was unable to confirm whether he would make a full recovery because this would depend on the outcome of the surgery.

• [55] In response to my question as to whether he would be able to comply with the vaccination requirements given that the Mandate is still in place at DP World, Mr Grace stated, "well, I just think that my own personal medical situation at the moment is just something I would rather not say"[52]. Later, Mr Grace confirmed that he is not vaccinated against COVID-19 and would not be compliant with the Mandate if he was reinstated.[53]

• [56] Mr Severino commenced working for DP World Sydney in January 2012 and at the time of his dismissal on 25 October 2021, had worked for the Company for 10 years. Mr Severino was 47 years of age when he made his witness statement.[54] Mr Severino is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Severino sent an email on 15 October 2021 to DP World's HR Team stating that he held genuine concerns about the COVID-19 vaccine and expressing his hesitancy in relation to being vaccinated. In his email, Mr Severino relevantly stated:

"I refer to your email instructing me to have a Covid-19 vaccine by 15 October 2021 as a condition of my continued employment with DP World Australia.

Currently, I am at home on workers compensation, recovering from a lower back injury that I sustained at work. I have not yet been cleared for return to work and have been advised that I will not be returning to the workplace for at least two more weeks, at a minimum.

There are no instructions for someone in my current situation.

Am I subject to alternate provisions given the current circumstances around my workplace injury?

These trial vaccines have no long term recorded data and we have a family member who is still struggling with side effects long after receiving her shots.

It has also been suggested to me from my medical practitioner that a better option for my individual medical situation would be to wait for the availability of the Novavax vaccine, due for release later this year in Australia.

1 December 2021 sees the vaccinated and unvaccinated back together unrestricted in the community once again as directed by the NSW government, therefore DP World mandating goes against the direction of the NSW government and their health officials guidelines.

I have been with DP World for 10 years and I feel I have been an asset to the organisation over this time. I love my job and I don't want to lose it.

This current situation has me feeling stressed and pressured and having this to worry about on top of my work injury is really taking its toll on my metal health.

I feel I am not being given the adequate opportunity to make the appropriate choices for my individual health and religious beliefs. (Religious exemption can be provided on request)

Upon recovering from my injury, I would prefer the option of being taken off the roster, therefore not being allocated any shifts, or using any leave that you guys allow over your option of being terminated from DP World.

I hope you can appreciate my concerns and understand why I'm requesting more time to choose an option that suits me and my family going forward.

I look forward to working at DP World for many more years to come, and I hope this can be resolved without the need for legal intervention.

Please don't hesitate to call if you need more information regarding any of the above."[55]

• [57] Mr Severino said Mr Eadie did not respond to any of his concerns. On 22 October 2021, Mr Severino responded to the Sydney show cause letter by email directed to "DP World HR and Management Team" in the following terms:

"As I have articulated previously, I have been medically advised that for my individual circumstances, it would be safer for me to wait for the Novavax vaccine. Due out later this year in Australia.

The pressure you are putting on me against my medical advice is severely affecting my mental health. I have never had to be treated for mental health issues in the past, and I want you to understand that my seeking help from my doctor, for mental health issues, is in direct relation to the pressure you are putting on me to be able to provide for my family. And I know, from conversations had with other people that you have put in this same situation, are experiencing the same problems/issues.

The list (of unvaccinated workers) getting around work, with my name on it, has in no way put my mind at ease about the privacy and discrimination concerns I am also feeling around this issue.

I love my job. I want to keep doing it at the high level I have displayed over the past 10 years. I have numerous accolade letters from the company in regards to my performance, that can be provided upon request.

Please do not sack me over ME just wanting to choose the best outcome for MY OWN health.

If you do choose to terminate me for choosing my own health outcomes and following my personalised medical advice, I will be seeing you in court. Where I will fight, until we end in the highest court in the land that will provide me justice, for you putting me in a state of feeling; helpless, anxious, depressed and defeated.

I hope you actually read this email, as by your response to my last one, I highly doubt you read it.

I look forward to your considered response."[56]

• [58] On 25 October 2021, Mr Severino was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice.

• [59] Under cross-examination, Mr Severino said that he had not sought a religious exemption but could have obtained one. In response to a question about the nature of his beliefs, Mr Severino stated that the vaccines are against his beliefs.[57] Mr Severino also said that he did not want to receive the Pfizer, AstraZeneca or Moderna vaccines with the main ground of his objection being his health and that it was against his beliefs to put something in his body that he does not approve of.[58] Mr Severino had the following exchange with Mr Crilly for the Respondents in relation to his position with respect to the Novavax vaccine:

"Well, Mr Severino, at a different time you told your employer that you had received medical advice that it would be safer for you to wait for the Novavax vaccine when it was approved, so what I'm asking you is do your religious objections to the three vaccines which were available at the time extend to the Novavax vaccine? ‑Yes.

So that was disingenuous, wasn't it, to tell your employer that you preferred to wait for another vaccine that you also objected to? ‑Well, it was - in regards to the exemption through religious beliefs it was me - I guess I was trying to - yes, I didn't want to take the vaccines and I was - whatever was - yes, I guess if there was an option, yes, not to take them and keep my job, then, yes, I guess you could see it that way.

You never provided any contraindication certificate from a doctor indicating that you couldn't have any of the available vaccines, did you, Mr Severino? ‑No, I didn't, no.

Did you ask for one from any doctor? ‑No. I had a discussion with my doctor in regards to - yes, in regards to what was better for me, yes. I had a discussion with him, but I - yes, I didn't ask for an exemption per se.[59]

• [60] In relation to his assertion that his medical practitioner had informed him that Novavax would be a better option, Mr Severino had the following exchange with Mr Crilly:

"You're saying your doctor told you that Novavax would be available later in 2021? ‑I had a discussion with him. I brought up the Novavax vaccine as being a different type of vaccine that may be an option for me and, yes, we discussed it and he said, 'Well, if that sits better with you, maybe that's something, you know, you can talk to the employer about.' That's what I've stated in my statement.

You told DP World your doctor had said it was a better option for your individual medical situation; is that true? ‑Yes, that's right, yes.

Why is that? ‑Well, I guess when I was discussing it with my doctor he could see, you know, that I didn't want to get these previous vaccines and he said if that is a better - 'If you feel better about the Novavax, well, then, yes, that's something you might be able to wait for and - if that's an option for you to go that way.'

I'm putting to you, Mr Severino, your doctor never told you that Novavax would be safer for you than any other vaccine? ‑Well, I discussed it with him and we - you know, my recollection is that he thought if it was something I felt better about it would be a better option for me."[60]

• [61] Mr Severino agreed that while he was devastated at his dismissal, particularly while he was absent on workers' compensation leave, he was not surprised and felt the Company would sack him if he did not get the vaccine and that feeling that way did not cause him to be vaccinated.[61] Mr Severino is the sole income earner for his family of four and had no idea how he was going to provide for his family. Mr Severino was subsequently put on a mental health plan by his doctor and was sent to see a psychologist for assistance with the mental anguish that he was experiencing as a direct result of his dismissal.

• [62] On 7 March 2022, Mr Severino commenced employment as a coal miner in the Wollongong area. Mr Severino found it extremely challenging to adjust to a new industry at the age of 46 and said that he continued to struggle to find employment that "ticks the boxes for [him] that working at DP World provided". The termination of his employment was said to have affected him and his family both emotionally and financially.

• [63] At the hearing, Mr Severino stated that prior to his dismissal his annual salary was roughly $120,000 to $130,000. Mr Severino accepted that at the time of his dismissal, his classification as a VSE under the Agreement was in the category of a grade 2 employee as opposed to grade 4. Mr Severino also stated that after his dismissal, he was on workers' compensation for about 3 months and had had a few different jobs prior to securing his employment as a coal miner. Mr Severino said he remained in the mining role for about 10 months but was unemployed at the time of the hearing.

• [64] Mr Severino confirmed that he continues to seek reinstatement to his former position with DP World and in response to a question as to whether he would be able to comply with the vaccination requirements if the policy was still in place at DP World, Mr Severino said that "it's hard to answer that at the moment" but confirmed that he remained unvaccinated as at the date of the hearing.[62]

• [65] Mr Mosca commenced employment with DP World Sydney on 10 October 2010. Prior to his dismissal on 28 October 2021, Mr Mosca had been employed by the Company for around 11 years. Mr Mosca was 41 years of age when he made his witness statement.[63] Mr Mosca is a member of the MUA and was represented by the Union in these proceedings. Mr Mosca said that he notified DP World on 3 October 2021 that he was on workers compensation, held genuine concerns about the COVID-19 vaccine and expressed his hesitancy to be vaccinated. Mr Mosca did not give evidence as to how this notification was conveyed to DP World. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Mosca sent an email on 15 October (jointly with his brother Ian Mosca) outlining his family medical history, in the following terms:

"We are writing to you today to request not to be terminated from our employment as our family has an underlying medical history involving heart attacks its stated acute myocardial ischaemia, coronary artery stenosis atherosclerosis and secondary is myocardial fibrosis, Hence why my brother Ian and I are hesitant in taking the vaccine for now.

We are also asking for this as you can understand its (sic) not easy to apply for a medical exemption at the moment and we cant (sic) apply for an exemption as our heart specialist is on leave at the moment and we can not (sic) even receive information from him about which of the vaccines would be suitable for us both with our family history.

We are asking to be placed on leave without pay until our heart specialist returns from leave so we can have an in depth evaluation from him.

We are happy to produce any evidence to support these claims."[64]

• [66] On 22 October 2021, Mr Mosca sent another email to HR and Mr Eadie stating that he would not be disclosing his vaccination status to DP World due to a potential privacy breach on DP World's part. That email correspondence stated:

"I'm writing to you today as I have come across evidence of a potential privacy breach in the form of a list including multiple employees and myself being named, which I can only presume the list is employees that have not provided their vaccination status or are unvaccinated.

This comes after Dp world guaranteed myself and many other employees over the last few weeks that this information would be treated as private and delicate, stating it would be securely stored at all times and not shared in any way as per Dp world's privacy policy.

Therefore I will not be disclosing my vaccination status as I have no confidence in Dp world's privacy policy as there may have been a potential breach on Dp world's behalf.

This is a very distressing and affecting my mental health."[65]

• [67] On 25 October 2021, Mr Mosca received a call from Mr Eadie about the Mandate. Mr Mosca said that during the call, he raised concerns around his family's medical history, that he was on workers compensation and was not present at work and that he had plenty of annual leave which he could use. Mr Mosca's recollection was that Mr Eadie did not respond to any of the apprehensions he held. On 28 October 2021, Mr Mosca was notified in writing that the Company was terminating his employment with immediate effect and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [68] In relation to workers compensation, Mr Mosca said that he injured himself at work on 23 July 2021, resulting in an 8mm tear in a tendon in his left shoulder. From that date he was not able to work and lodged a workers' compensation claim. Mr Mosca said he remained on workers' compensation until April 2022, when he was cleared by his doctor to return to work at full capacity.

• [69] Under cross-examination, Mr Mosca agreed that he had never produced evidence to DP World to support his claim about his family's medical history but said that he had not been asked to do so. Mr Mosca accepted that he had not actually obtained an exemption from vaccination on medical grounds.[66] Mr Mosca was taken to the email he sent to DP World Sydney on 22 October 2021 in relation to alleged privacy breaches and maintained that he was only refusing to provide his vaccination status and would have provided his family medical history, if requested.[67] In response to a question about the difference between providing his family medical history and his vaccination status, Mr Mosca said that he willingly opened up and told DP World about his family history but all they wanted to know was whether he was vaccinated and "glossed over" his family history like it was nothing.[68] In response to the proposition that what DP World Sydney wanted was proof of vaccination or a contraindication certificate, Mr Mosca asked whether these were the same thing, and said that he did not know what a contraindication certificate was and had not provided one to the Company.[69]

• [70] As to whether Mr Mosca had consulted his doctor about obtaining an exemption on the basis of a medical contraindication, Mr Mosca gave the following evidence:

"I never got the chance. I wanted to see the heart specialist that I went and seen in 2014, because my mother died so I thought I'll go and get my heart checked and - yes, 2014 was when I had the appointment and that, but I wanted to talk to him, the cardiologist, to see what vaccination was good for me, which he didn't come back until January that next year. So January 22 was when I could get in and that's where I was sort of, like, 'Can I have more time' - DP World, Scott Eadie - 'to get that appointment?' which - no, in other words, yes, terminated.[70]

• [71] Mr Mosca said that after he was dismissed in November 2021, he did not ultimately make an appointment with his cardiologist as he did not see the point of doing so.[71]

• [72] Mr Mosca maintained that the list of unvaccinated employees including his name was circulated prior to 15 October 2021 but accepted that despite causing him distress he did not report it until 22 October. Mr Mosca also said that the mandate has lifted everywhere except DP World and that he is without a job.[72] In re-examination Mr Mosca said that no-one from DP World contacted him about the list.

• [73] Mr Mosca said that he was devastated to learn that DP World had terminated his employment. He was the sole income earner for his family of four and he had no idea how he was going to provide for his family. Mr Mosca stated that he has a mortgage and general bills that need paying and without a job, he is struggling financially. In addition to his dismissal and injury, Mr Mosca said he has had other family pressure to take care of, including his sons who are going through their own mental issues and the need to support his wife throughout the process.

• [74] Mr Mosca, however, accepted in cross-examination that he did not know where the list came from or who compiled the list and that he was not aware that an investigation had been conducted by DP World in relation to the list. In re-examination, Mr Mosca confirmed that he was not contacted by anybody from DP World management, human resources or Mr Eadie to discuss the list and that he was not informed that DP World was not responsible for the list.

• [75] Mr Mosca has remained unemployed since his dismissal by DP World and has not attempted to seek alternative employment[73]. In this regard, Mr Mosca said that he is currently receiving an income from his income protection insurance claim because of a psychological injury.[74] Mr Mosca continues to seek reinstatement, though he is not currently fit to work. In response to a question as to whether he would be able to comply with the vaccination requirements given that the Mandate is still in effect at DP World, Mr Mosca stated that "I could consider it, yes".[75]

• [76] Mr Kinnear commenced employment with DP World Sydney in September 2014 and had been employed for 7 years prior to his dismissal on 25 October 2021. Mr Kinnear was 37 years of age at the time of making his witness statement.[76] Mr Kinnear is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Kinnear sent an email on 14 October 2021 to DP World expressing that he held genuine concerns about COVID-19 vaccines and was hesitant about being vaccinated. In his email addressed to HR, Mr Kinnear relevantly stated:

"In response to the above email regarding vaccination mandates. On compassionate grounds, I would like more time to assess my options and so request to be placed on either annual leave, sick leave, unpaid leave or stress leave as of Monday 18th October 2021.

On a personal level, I have been feeling extremely stressed from both these new expectations from work as well as my family life. I lost my sister to cancer 2 years ago, she was only 26 years old. My mother also had cancer last year and although she was able to go into remission for a time, unfortunately cancer has returned. My mother is currently going through chemotherapy and treatment, putting enormous pressure on myself and the rest of the family. I need to remain in good health myself to ensure I can be there for my mother and family.

I feel highly anxious to be put in a position by my employer who appears to be coercing me to choose between taking an experimental drug that has already recorded more adverse reactions than any other drug combined in history, or lose my income. This mandate would appear to be in conflict with workplace ethics and law, in terms of Employer Health & Safety regulations and also the Australian Constitution?

I really enjoy working at DP world and would like to maintain my position within the company. I believe I am a valuable asset to this organisation and have worked hard throughout my tenure at DP.

I would greatly appreciate a little more time to navigate my way through this decision that may have significant impacts on my health and household income.

I would appreciate your compassion towards my situation."[77]

• [77] On 19 October 2021, Mr Kinnear received the Sydney show cause letter from Mr Eadie, but maintained that Mr Eadie did not address any of the concerns he had raised in his 14 October email. Mr Kinnear did not respond to the show cause letter. Subsequently, on 25 October 2021, Mr Kinnear was notified in writing by the Company that his employment was terminated with immediate effect and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [78] Under cross-examination, Mr Kinnear maintained that all vaccines then available were experimental and said that he would not have received a vaccine until he could guarantee that it would not put his health at risk and there was "long term" safety data which usually took years. Mr Kinnear was asked whether he would have required years of safety data to make an assessment about being vaccinated and said that he would not have received a vaccination until they were "deemed safe.[78] Finally on this point, Mr Kinnear had the following exchange with Mr Crilly:

"Here is the proposition I am putting to you, Mr Kinnear: you were asking for leave at this time, yes? ‑Correct.

As long as DP World had a requirement that you be vaccinated, you were never coming back, were you? ‑Well, not until they realised that the vaccine mandates didn't work. They didn't stop transmission, they didn't stop people from getting it, so as far as I was aware the company would have realised that the vaccine mandate didn't work, the vaccines didn't work and therefore they would drop that and if they were thinking straight they would just bring everyone back to work.

This is my last question about this, Mr Kinnear, but what you are telling us, as I understand it, is you were not going to be vaccinated and come back to work - I withdraw that. You were not willing to be vaccinated and therefore you would not come back to work until DP World simply changed its mind and agreed with you? ‑Well, yes. It didn't make any sense to me because the vaccines weren't safe and now they've proven that they don't work, so it's as simple as that."[79]

• [79] Mr Kinnear had the following exchange with Mr Crilly in relation to his evidence that he was surprised at his dismissal:

"Mr Kinnear, DP World had put out a communication saying that it was going to implement a vaccine mandate and you got that; right? ‑Yes, that's correct.

You received letters from Mr Eadie stating the dates by which you needed to be vaccinated in order to continue to work at its sites; correct? ‑Yes. I'm pretty sure he just forwarded it on from whoever was above him, but, yes.

And you received a letter from Mr Eadie which said that DP World was considering terminating your employment because you were not in compliance with that mandate; correct? ‑That's correct.

And you are telling us you were surprised when your employment ended? ‑Yes, because I think it's ludicrous and I thought it was just threats to try and get us all - coerce us all into taking an experimental vaccine.

You knew - - -? ‑So I was still shocked even though I got all the letters. Yes, I was shocked.[80]

• [80] In re-examination Mr Kinnear said that he was not contacted by DP World human resources staff or managers in response to his email of 14 October and the concerns that he raised and that "there was no care on a personal level."[81] Mr Kinnear also said that the termination had a devastating impact on him both emotionally and financially. On 4 October 2021, Mr Kinnear's wife lost her teaching position and this meant that within a month both he and his wife lost their full family income. Consequently, they had to sell their family home in Sydney.

• [81] Mr Kinnear further stated that he and his wife have been unable to get a bank loan because they have both been unemployed for 18 months, and due to the loss of income, they have had to relocate their family to the NSW South Coast. During this time, he was also providing care to his elderly mother, who passed away in March 2023. Mr Kinnear said it has been beyond difficult to provide and remain positive, for his family as he struggles financially, and the stress has been overwhelming. He said that he has also had to navigate the loss of his sister and mother on top of everything else and that he has lost access to his support networks due to the prohibitive cost of living in Sydney without stable employment.

• [82] At the hearing, Mr Kinnear's evidence about his earnings in his final year of employment with DP World was that he made $71,939 inclusive of a termination payment. Mr Kinnear's also said that his typical annual income at DP World was roughly $120,000 to $130,000 inclusive of bonuses and payments for performing higher duties,[82] but accepted that as a VSE, the minimum guaranteed salary was roughly $81,000 to $82,000 per annum. Mr Kinnear also confirmed that since his dismissal, he has not had other employment or income and he has used his time to upskill himself by completing courses in fitness coaching.[83]

• [83] In relation to this hesitation in receiving vaccination against COVID-19, Mr Kinnear's evidence is that he believed that COVID-19 vaccines are unsafe and ineffective and there was no long-term safety data to demonstrate that the vaccines were safe. In this regard, Mr Kinnear and Mr Crilly had the following exchange in cross-examination:

"What I'm asking you, Mr Kinnear, is when would you have been satisfied it was safe if that was what the data showed? How much data? --- When an adverse - when there was an adverse reaction of death or myocarditis or pericarditis - once they were removed, then I would look at taking something like that, but the risk outweighed the reward. If anyone had a look at the adverse reactions or actually what was in the vaccines, they should think twice, as well.

So is your position that as long as there was any risk of the side-effects of myocarditis or pericarditis, you weren't going to take this vaccine? --- Not until there was long-term safety data, which there wasn't. It was an experimental vaccine at the time. There was no long-term safety data.

So you would have required years of safety data to make an assessment about whether you would take these vaccines? --- Well, until they were deemed safe. Until they're deemed safe, no one should be putting these in their body because the number 1 thing for me is I've got to be fit and healthy to look after my family. If anything is going to jeopardise that there is no way you would be injecting yourself with something that you know nothing about and no one knew nothing about it. Everyone put their life up in jeopardy over it. So it doesn't how you twist the words, the vaccines weren't safe. It's as simple as that."[84]

• [84] Mr Puhipuhi commenced employment with DP World Sydney on 15 August 2015 and had been employed by the Company for 6 years prior to his dismissal on 25 October 2021. Mr Puhipuhi was 42 years of age when he made his witness statement.[85] Mr Puhipuhi is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Puhipuhi sent an email on 15 October 2021 expressing that he held genuine concerns about COVID-19 vaccines and was hesitant to be vaccinated. In his email, Mr Puhipuhi relevantly stated:

"I'm writing in regards to the mandate of vaccinations and the reason why I haven't received my COVID vaccine and why I want to keep my job.

I don't talk about this often as it's something I don't like to talk about. It's very personal, my children have had issues post immunisations which is why I'm very hesitant in receiving the COVID vaccine.

I'm the sole provider for my family, my partner has suffered post-natal depression and still struggles with our reality of caring for children with disabilities. It's a full time job in itself and my job gives me the freedom to be there to support my partner and my family.

I enjoy coming to work & doing my job! I don't complain or have any conflict. I would like to keep my job as It's been a very difficult over the last 18 months."[86]

• [85] On 19 October 2021, Mr Puhipuhi received the Sydney show cause letter. Mr Puhipuhi said that Mr Eadie did not address any of the concerns he had raised in his 15 October email. Mr Puhipuhi did not respond to the show cause letter. Subsequently, on 25 October 2021, Mr Puhipuhi was notified in writing by the Company that his employment was terminated with immediate effect and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [86] Under cross-examination Mr Puhipuhi agreed that he knew DP World Sydney was considering terminating his employment because he was not vaccinated against COVID-19. Mr Puhipuhi also agreed that he had chosen not to be vaccinated. Mr Puhipuhi said he was devastated to learn that DP World had terminated his employment as he is the sole income earner in his family and had no idea how he was going to provide for them. In January 2022, Mr Puhipuhi said that he started employment as a delivery driver during the daytime and is employed as a pick packer on a causal basis during the night time. He said that the work is sporadic and insecure as he does not know his shifts from one day to the next and it makes it very difficult to budget for his finances and plan his life.

• [87] Mr Puhipuhi also said that he has rent and general bills that need to be paid and has two sons with autism requiring that he pay for their therapists weekly. Mr Puhipuhi said he is struggling financially as he does not have a base rate of pay or any guaranteed income and on average, he earns about $1,100 per week. His personal life has also been very stressful as he has been dealing with a lot of mental health issues, and because of the pressures associated with this difficult time, his relationship with his partner of 14 years has ended.

• [88] At the hearing, Mr Puhipuhi confirmed that his annual earnings at DP World were on average between $110,000 and $130,000[87] and that he continues to seek reinstatement to his position with DP World. In relation to his assertion that his children have had issues post-immunisations, Mr Puhipuhi was questioned whether he sought medical advice as to whether he might have the same problem with immunisation. Mr Puhipuhi's response was that he did not seek any medical advice and the only information he sought in that regard was from the internet and his own research.[88] In relation to whether he attempted to seek a medical exemption to the vaccination requirements, his response was that "I tried to, but at the time I couldn't get in anywhere and do anything to get the exemptions or anything, so no."[89] As to whether he would be able to comply with the Mandate if it was still in effect at DP World, Mr Puhipuhi said "Yes, yes. I'd look into that"[90].

• [89] Ms Richards commenced employment with DP World Sydney (then P&O Ports) in August 2006. Prior to her dismissal on 25 October 2021, Ms Richards had worked at the Sydney Terminal for over 15 years. Ms Richards was 56 years old when she made her witness statement.[91] Ms Richards is a member of the MUA and was represented by the Union in these proceedings. In response to the 16 September 2021 Mandate announcement from Mr Adam, Ms Richards sent an email on 3 October 2021 to DP World notifying the Company that she held genuine concerns about the COVID-19 vaccine and her hesitancy to be vaccinated. The email was in virtually identical terms to the email set out above sent by Mr Tosh.[92]

• [90] In response to the 12 October 2021 Sydney information letter from Mr Eadie, Ms Richards sent an email on 18 October 2021 addressed to "PBT Human Resources", expressing her concerns about the COVID-19 vaccine. In her email, Ms Richards relevantly stated:

I have thoroughly perused your correspondence and considered DP World's position with

I am a long term employee (over 15 years service) of this company and I value my job highly.

However, DP World's policies surrounding the COVID vaccination have resulted in me experiencing extreme levels of stress and anxiety. I feel coerced and forced into this decision as my family and I are now facing the prospect of financial hardship.

I ask that any requests for leave be approved whilst we work through this difficult time.

At the time I was offered employment with this company I was not made aware that I was required to disclose personal medical information or undergo medical procedures in order to retain my position.

I therefore feel that the above are not valid reasons to terminate my employment."[93]

• [91] In response to the 19 October 2021 Sydney show cause letter, Ms Richards said because Mr Eadie did not respond to her apprehensions about the COVID-19 vaccination, she resent her 3 October email to Mr Eadie on 23 October 2021 as her reasons why she believed that DP World should not terminate her employment. Two days later on 25 October 2021, Ms Richards was notified in writing that her employment was terminated by the Company with immediate effect and that she would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [92] Under cross-examination about the basis for her belief in the probability of vaccine injury, Ms Richards accepted that she was not trained in the medical or scientific field relating to vaccines and her belief was based on the research she had conducted herself.[94] In relation to the email she sent to DP World on 3 October 2021, Ms Richards agreed that the same email was sent to DP World by her and some of her colleagues, and said that "this was a group email, so this was research that we'd done as a group, not my individual research"[95]. Ms Richards said that she did not know where the text of the email came from.

• [93] Ms Richards said that she was devastated when she received the termination letter from DP World as her income had provided half of her family earnings and she knew that her partner's income alone would not be sufficient to cover their financial commitments. Ms Richards said that it was her expectation that she would continue to work for DP World until her retirement and that financial decisions had been made according to that expectation. Ms Richards further described the adverse impacts of the loss of her employment on her mental health, her family, her financial circumstances, her ability to support her children and her relationship with her partner.

• [94] Following her dismissal, Ms Richards decided to embark on a new career but at the age of 55, this has proved to be daunting. She said that having no qualifications that would allow her to do non-physical work, she began training to build physical strength and fitness to pursue work as a Deckhand, for which she held a certificate. She said that because she had no experience as a Deckhand, she obtained a hospitality qualification which she hoped would allow her to enter the workforce again.

• [95] In March 2022, Ms Richards managed to find employment with Captain Cook Cruises in a role which was primarily a hospitality role with secondary deckhand work, and she was paid a minimum wage. Ms Richards described that being the oldest worker in that work environment and having never worked in hospitality, the role took a toll on her body and she experienced pain, numbness and cramping in her feet and legs for days after a shift. She said that she eventually asked to be moved to a new role in which the duties were entirely those of a Deckhand. Physically, Ms Richards said she was able to manage that role but her hours and pay reduced dramatically as a result, and the financial situation of her family did not improve. At the hearing, Ms Richard clarified that her pay was reduced because her hours were reduced.[96] After accruing over a year of experience with Captain Cook Cruises, and hoping to improve her situation, Ms Richards applied for a higher paying Deckhand role with another company but was unsuccessful.

• [96] Following her unsuccessful job application, Ms Richards and her partner made the decision to trial a separation. Ms Richards removed her youngest son from school to pursue a simpler, rural life while her partner and their daughter remain in Sydney where their daughter can complete her studies. She said she hoped that this unorthodox arrangement would allow them to reduce their costs of living and alleviate the prolonged stress her family has been living under. Ms Richards held and continues to hold a firm belief in the probability of vaccine injury, if not in the short term, then in the long term.

• [97] At the hearing, Ms Richards tendered into evidence her Notices of Income Tax Assessment for the financial year of 2020-21 and of 2021-22. The Notice of Assessment for the financial year ending on 30 June 2021 shows that Ms Richards had a taxable income of $150,715 from her role with DP World. The Notice of Assessment for the financial year ending on 30 June 2022 shows that her taxable income for that year was $90,350.

• [98] Ms Richard gave evidence that she resigned from her employment with Captain Cook Cruises about 3 months prior to the hearing and that she was not currently employed.[97]

• [99] Mr Lewis commenced employment with DP World Sydney on 7 July 2007 and at the time of his dismissal on 25 October 2021, had worked for the Company for 14 years. Mr Lewis was employed as an electrician. At the time Mr Lewis made his witness statement he was 53 years of age.[98] Mr Lewis is a member of the MUA and was represented by the Union in these proceedings. In response to the 16 September 2021 Mandate announcement, Mr Lewis sent an email on 3 October 2021 to DP World.[99] That email was in substantially the same terms as the email sent by Mr Tosh[100].

• [100] Mr Lewis said that the Sydney information letter he received on 12 October 2021 and the 19 October Sydney show cause letter, did not respond to the concerns he had raised in his previous correspondence. On 22 October 2021, Mr Lewis sent an email to Mr Eadie and HR outlining his response to the show cause letter in the following terms:

"Firstly, I must apologise for missing Friday 15 October 2021 deadline about the DP WORLD covid 19 vaccination Mandate submission.

I was rostered on dayshift twelve hours Thursday 14 October and Friday 15 October 2021, my intention was to update you of my situation at my lunch break on Friday 15 October 2021. My orders that day involved a major rewire install on an RTG, the task was very complex and I had the added pressure from operations that needed the equipment returned to service and I was also working one out. My lunch break was cut short at my own choice leaving me insufficient time to respond to HR.

Leaving work at the end of my shift I felt sick in the stomach and had an extreme headache, also I was suffering from light headiness. When I returned home I went straight to bed, feeling exhausted and experienced sickness like never before. Since then I have been bed bound until yesterday unable to lift my head off the pillow, luckily my wife has been home to care for my needs.

Sunday afternoon 17 October 2021 my wife called Microster IVR System to inform them that I would be sick for Monday 18 October 2021 dayshift and we also called the maintenance supervisor which checked his computer to confirm I was registered as sick and was confirmed by him. Then I repeated that for Tuesday 19 October 2021 dayshift and Wednesday nightshift 20 October 2021

Also I am aware now that I had to reply by today the 22 October 2021 by 5.00 pm with my vaccination Mandate compliance. Upon checking my emails today I noticed on my payslip I have been deducted 60 hours unplanned leave for this week. This made me feel very disappointed with the situation, I should have been paid three twelve-hour sick leave at which I am more than entitled to.

My request is to have the pay period re balanced with correct sick leave component added and the unplanned leave removed. I am also seeking extra time to assess my situation in discussion with my Family Health Practitioner in reference to the next stage of fulfilling DP WORLDS vaccination Mandate directive.

Hope you can understand my position and show some compassion in my situation, my wife has been out of work for a few months and I am struggling to keep my home and family at the moment. In my 14 years at DP WORLD I have always remained committed and complied with all the companies directives, I am well respected by my peers and management and have never abused my leave entitlements.

In closing if you could assist me with the above request, I just need some extra time due to what has happened to me to recover and complete the next stage of the vaccination requirements.

Thank for your time and I would appreciate response moving forward as soon as possible please."[101]

• [101] Unknown to DP World at the time, Mr Lewis had received his first dose of vaccination on 21 October 2021 after his illness had subsided. Mr Lewis explained he had not told the Company as he had thought he would have been granted the extra time that he required to receive the second dose. Mr Lewis confirmed he received the second dose on 19 November 2021 which he said was pushing the recommended timeframe between the first and second dose by two weeks. Mr Lewis also said that in his view, he clearly explained his situation in his email dated 19 October 2021 and requested that DP World give him more time to recover from his illness and complete the next stage of the Mandate.

• [102] On 25 October 2021, Mr Lewis was notified in writing by DP World that his employment was terminated with immediate effect and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice. Mr Lewis noted that at no point was he contacted by any person in respect of assistance or support he may have required from DP World's HR staff or management. As Mr Lewis was the only employee from the Maintenance Team who was dismissed, he did not receive any information or assistance from fellow workers.

• [103] Mr Lewis explained that his initial delay and hesitation with respect to being vaccinated was due to a medical circumstance involving the discovery of a large spot on the roof of his mouth which had been noticed during a general dental check-up. Mr Lewis said that his dentist was concerned that the spot may have been a melanoma. On 15 July 2021, Mr Lewis was directed to see a specialist dental clinic equipped to deal with cancers and medical examinations were carried out. Although there was no positive diagnosis, Mr Lewis said that the cancer scare left him feeling concerned about altering his immune system during this time of stress. Mr Lewis said that his next appointment was scheduled in six months to monitor any changes, as it was difficult to perform a biopsy on this area of the mouth. Mr Lewis explained that this type of medical information was very confronting and upsetting.

• [104] Mr Lewis accepted that he had not disclosed to DP World, prior to his dismissal, that he had in fact received the first dose of vaccination, or that he had a suspected melanoma and was feeling concerned and overwhelmed about it at the time. In that regard, Mr Lewis and I had the following exchange:

"Yes. Mr Lewis, you can agree or disagree with this, but you could have written an email to Mr Eadie and said, 'I've been concerned because I had a suspected melanoma on the roof of my mouth and I wanted to get that sorted. And then I was really sick on the days and here's the proof because I called in sick. And so I didn't have the vaccination by the 15th and I'm really sorry, but I've had it'? --- Hindsight's a wonderful thing and in the time what we were all going through, my wife had lost her job. I've got a massive house mortgage. I was trying to still do my job as I was employed to do 100 per cent without being sidetracked with writing letters and all this sort of stuff. I just found it overwhelming, because that's not me. I was there to do my job. Yes, I love my job and I'd been there for a long time and I was well respected. There was a lot going on. I had this medical concern, I had my wife with no job. It was - yes, there was - it wasn't just cut and dried. Yes." [102]

• [105] In relation to his request to DP World for "some extra time" to complete "the next stage of the vaccination requirements", Mr Lewis clarified that what he meant or intended to convey was that he had received the first vaccine dose on 21 October 2021 and in his view, had completed the first stage of the Mandate and was therefore seeking additional time to receive the second dose - "the next stage". Mr Lewis said his reason for not being clearer in his communication about his personal circumstances was that "there was a lot going on". Mr Lewis also expressed the view that if DP World had contacted him or talked to him personally, he probably would have shared the information and he had genuinely thought that someone from HR would have contacted him and asked for the information, but this did not occur. In this regard, Mr Lewis gave the following evidence:

"And do you think you might have given more information if someone had contacted you and talked to you? ‑I probably would have. Yes, I think so. Yes, I think we really lacked that personal contact that was probably required. Yes, I genuinely thought someone in HR would have contacted us when you're asking for it. They simply just attached the care program thing. You don't want to talk to someone that's not, you know, personally involved with you there."[103]

• [106] Mr Lewis said that he was devastated to learn that DP World had terminated his employment. His wife had also lost her job in the weeks prior, and they were still coming to terms with that. Mr Lewis said he had no idea how he was going to provide for his family. After Mr Lewis' employment was terminated, he had been advised by some employees who were still working at DP World that the Company had permitted terminated employees to return to work if they agreed to receive a double vaccination or could produce a medical certificate proving why they could not be vaccinated.

• [107] On 26 November 2021, Mr Lewis contacted Mr Eadie on his mobile phone and discussed his situation about meeting the requirements of the Mandate. Mr Lewis sought further information about the fact that DP World had allowed workers to return only a couple of weeks before his call. Mr Lewis said he was not aware of this until the day he called Mr Eadie. Mr Lewis told Mr Eadie that he had not received any contact from anyone about meeting the vaccination requirements and making a return to the workplace. Mr Lewis recalled that Mr Eadie expressed how he had heard only good reports about Mr Lewis and that Mr Lewis had no disciplinary issues. Mr Lewis was then asked to provide proof of his vaccination. A copy of his vaccination certificate was sent to Mr Eadie on 30 November 2021.

• [108] On 3 December 2021, Mr Lewis received an email from Mr Eadie asking him to provide information about his desired outcome of the process. It stated as follows:

"As you are aware, you were required to ensure that you provided confirmation of your vaccination status by 9am on Friday 15 October 2021. I sent you a letter on 19 October 2021 requesting you to provide reasons why your employment should not be terminated for failing to comply with the vaccination requirements for employment in DP World.

I refer to the email you sent on 22 October 2021 where you stated, "I am also seeking extra time to asses my situation in discussion with my Family Health Practitioner in reference to the next stage of fulfilling DP WORLDS vaccination Mandate directive."

Based on the above, your employment with DP World was terminated on 25 October 2021.

On Tuesday 30 November, you provided me evidence of your vaccination status confirming you had your first COVID-19 vaccination dose on 21 October 2021 and your second COVID19 vaccination dose on 19 November.

After considering the information provided above, DP World invites you to provide reasons of your intention and the outcome you are seeking. You may provide this information in writing by providing a response to [email] by 5:00pm Wednesday, 8 December 2021. In addition, we require a satisfactory explanation as to why your email on 22 October clearly indicates that you remained unvaccinated when your vaccination certificate states otherwise.

Subsequent to this, DP World will be in contact to discuss next steps based on the information provided to us.

Please contact me if you have further questions."[104]

• [109] Later that day Mr Lewis received a text message from Mr Eadie asking Mr Lewis to provide the requested information to HR via email. On 5 December 2021, Mr Lewis sent the following email:

"Thank you for the opportunity to reply after our recent phone call in regard to having my termination of employment reversed. Firstly, I will state that I never once denied being vaccinated or becoming vaccinated and as my last letter of reply informed you on the twenty second of October 2021 that I was very sick that week. I was concerned for my health at the time and receiving the first vaccination under those condition is not recommended a known fact.

I decided to go ahead and receive the vaccination on the 21/10/21 knowing that I would not have the time to receive the second vaccination in time to meet your demands. I never revealed my private medical information which was advised to me by a legal professional, my request for extra time to proceed to the next stage of the DP WORLD vaccination mandate was denied.

Seeking advice from my Family Health Practitioner in regard to receiving the second vaccination after suffering side effects from the first vaccination, I discussed the option of receiving AstraZeneca might assist me, they suggested the side effects were from the illness I had suffered the days in the lead up to the 21/10/21 and stated that the Pfizer would be fine.

I proceeded with the second Pfizer vaccination on the 19/11/21 with time not on my side to try and get my job back.

To answer your question the reason for my intention and the outcome I am seeking has been covered and I would like to return to my place of employment for almost 15 years where I have enjoyed working every day.

In closing the termination was a very unfortunate surprise, as stated in my previous letter my wife had lost her job and we had major concerns with our children and their careers at the time. I have never contacted the MUA or have they contacted me throughout the whole process. I have not lodged a case with the union in the Fair Work Commission.

I am ready to return to my normal work duties this week if you could give me the opportunity it would be very much appreciated." [105]

• [110] Mr Lewis recalled that Mr Eadie sent a text message confirming he had received the information, and the Company would review it and get back to Mr Lewis. On 14 December 2021, Mr Lewis sent a text message to Mr Eadie asking if there was any news on his position. On 16 December, Mr Lewis received a text message from Mr Eadie stating that DP World had sent him an email which contained DP World's decision about his employment. The email, dated 15 December 2021, stated as follows:

"I refer to my letter dated 3 December 2021 regarding your termination on 25 October 2021.

On 5 December 2021, you responded to my letter with an explanation as to why you weren't forthcoming with your vaccination status when you emailed on the 22 October 2021. DPW did not receive confirmation of your vaccination status until you messaged a screenshot of your Covid-19 Digital Certificate to me on 30th November.

I have taken into consideration your response and our previous communication and made a decision that your employment will not be reinstated as you had failed to comply with the vaccination requirements for employment at DP World.

DP World CARE program provided by Assure will continue to be made available to you for a further 3 weeks from the date of this letter...."[106]

• [111] Mr Lewis said that following his dismissal by DP World, he had been engaged in a few jobs and has only been employed as a sub-contractor or casual. Mr Lewis explained that not knowing his work pattern from one day to the next was incredibly stressful and made it very difficult to budget his finances and plan his time. Further, Mr Lewis has a mortgage and general bills to pay and in the current climate of interest rate rises and cost of living pressure, "has lost everything he has worked for in the past 30 odd years". Mr Lewis said that his personal life has been very stressful as he has had to navigate some very difficult family circumstances, whilst trying to stay positive and keep his marriage of 33 years together. Mr Lewis explained that he would like to return to work at DP World and continue to work with his fellow colleagues and would be able to comply with the Mandate if reinstated.

• [112] Mr Kitiona Tanielu commenced employment with DP World Sydney in March 2014 and had been employed by the Company for 7 and a half years when he was dismissed on 25 October 2021. Mr Kitiona Tanielu was 45 years old when he made his witness statement.[107] Mr Kitiona Tanielu is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Kitiona Tanielu sent an email on 18 October 2021 to DP World expressing that he held genuine concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, he relevantly stated:

I have been an employee for over seven and a half years operating tug and RTG machinery.

I have never caused damage to company equipment or facilities.

Nor endangered the well being of my fellow workers.

Yet my employment with the company is at risk because of my personal/private health decisions?

I am a very logical person so when you allow people who have been vaccinated to work yet they have the same risk of catching covid and spreading as an unvaccinated worker but they are allowed to work and I am not It blows my mind!

The insanity is unbelievable especially when the company promotes anti bullying, LGBTQ, white ribbon, R U OK? as well as others which I fully support but because of my personal choice I am being shunted? The hypocrisy of it all makes me sick to my stomach.

It is a shame that a company that promotes these values is literally discriminating against it's workers,

I enjoy my time and people I work with there at DP world and always perform to the best of my abilities remember I am not refusing to work there YOU are refusing me to work there because of my beliefs which IS discrimination.

Being a samoan born in New Zealand I have faced discrimination and racism growing up all of which has never bothered me even when I came to Australia it was always water off a ducks back. But the feeling of Discrimination I feel now especially from a company with so called 'values' is unbearable.

I sincerely hope I can continue to work at DP world and continue to support my family, But integrity and liberty are values I teach my kids, so what type of father am I to tell them to stand up against bullies and always make your own choices in life and stand by them if I don't follow that mantra?

I am sorry if this email comes across as blunt but when you decide to implement a policy that ultimately puts me at risk of being able to put food on the table or a roof over my families head then you will understand why.

If my employment does end with DP world I genuinely wish all the best to the people there. I have made awesome friendships as well as memories and I can proudly say I helped keep this beautiful country of Australia moving!

• [113] Mr Kitiona Tanielu said that other than sending him the Sydney show cause letter, Mr Eadie did not respond to any of the concerns raised in his 18 October email. In response to the Sydney show cause letter, Mr Kitiona Tanielu sent a letter by email to Mr Eadie on 25 October, in the following terms:

The chance of still contracting covid even after taking the vaccine.

And known adverse reactions that could cause harm to my health.

I hope this decision doesn't affect my employment with the company because I do strive to give my best every shift."[109]

• [114] On 25 October 2021, Mr Kitiona Tanielu was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice. Under cross-examination, Mr Kitiona Tanielu agreed that he received the Mandate announcement in September 2021 and understood that employees would be required to be vaccinated against COVID-19 if they wanted to work at the Sydney Terminal. Mr Kitiona Tanielu also agreed that he received correspondence from Mr Eadie setting out dates and advising that because he had not been vaccinated, consideration was being given to terminating his employment. Further, Mr Kitiona Tanielu agreed that he had consulted with his doctor but had not obtained an exemption from vaccination. It was also confirmed by Mr Kitiona Tanielu that he appreciated that if he chose not to be vaccinated his employment would be terminated and that this would have the financial impacts he had described in his statement.[110]

• [115] Mr Kitiona Tanielu said he was devastated to learn that DP World had terminated his employment. He said that he and his partner are the income earners for a family of five with 2 children whilst looking after his aging mother at their home. He has no idea how he is going to provide for his family. Further, he suffered from depression and deteriorating health and was hospitalised for 2 months, and bed ridden at home for a month, because of stress.

• [116] Mr Kitiona Tanielu said he began to work as an Uber driver in November 2022 and only worked part-time because he is still recovering from mental health issues. He said that the work of an Uber driver is insecure, and he does not know his shift from one day to the next, which makes it difficult to budget for his finances as he has a mortgage and general bills that need to be paid. Mr Kitiona Tanielu said his base rate of pay is about $900 per week and he is struggling both personally and financially.

• [117] At the hearing, Mr Kitiona Tanielu tendered into evidence an Income Tax Notice of Assessment for the financial year of 2021-22, which shows a taxable income of $71,727 from his employment with DP World, noting that he was dismissed on 25 October 2021. Mr Kitiona Tanielu also tendered into evidence business activity statements for a business named "BODYKIT HEALTH & FITNESS". Mr Kitiona Tanielu explained that it was a business he created almost 15 years ago when he was a personal trainer, and he merely used the business name and ABN for the purpose of getting paid as an Uber driver. Those business activity statements disclose that the total sales generated from his Uber driving were $11,575 from October to December 2022, and $18,155 from January to March 2023.

• [118] Mr Kitiona Tanielu confirmed that he continues to seek reinstatement. He is aware that the Mandate is still in effect at DP World, but in response to a question as to whether he would be able to comply with the Mandate if he was to be reinstated, his response was "No. I wouldn't, no."[111]

• [119] Mr Parrott commenced employment at DP World Sydney in November 2013 and at the date of his dismissal on 25 October 2021, had been employed for almost eight years. At the time of making his witness statement, Mr Parrott was 48 years of age.[112] Mr Parrott is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Parrott sent an email on 14 October 2021 to DP World expressing his genuine concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Parrott relevantly stated:

"In response to DP World's email regarding required vaccination, I would like to apply for unpaid leave, or be temporarily stood down, with or without using my entitlements, even though I am available to work any shifts DP World offer me as usual.

As stated before I have serious concerns about the way these new vaccines are just being forced on people with no real data to prove safety and effectiveness.

I would like to point out that people are standing side by side every day in the supermarket, butchers, bakery etc, regardless of having the shot or not, and soon the whole country will be open wide, which also makes this mandate redundant.

Some of these injections have even been halted as we speak due to safety concerns, which is quite frankly alarming.

Me and my families medical history with vaccines and related issues is nobody's business but ours, and I shouldn't ever have to explain this to anyone.

I didn't think I would have to share this info, ever.

Members of my family have had more than one adverse reaction to vaccines before.

Also my brother will be having open heart surgery next month for a hereditary condition that I have not been tested for yet.

Neither of these situations as crazy as it sounds, are enough for any type of exemption, but wouldn't it be our basic human right to make our own decision regarding this without the threat of losing employment?

DP World are placing unimaginable stress on me and my family by threatening my ability to provide an income unless I submit to a real time clinical trial.

This is absolutely insane that DP World or any company would do this?

By all means make it available alongside the flu shot.

There are proven alternatives to this situation and I, and I'm sure there are other employees too, ask that we are given the right, and given the timeframe to make our own choices and decisions when it comes to dealing with this situation.

I am asking for this leave as an employee of eight years, who always gives 100% for DP World.

This will be by far the most important decision in my families lives, there are other options for everyone out there and more treatments coming soon.

This MRNA trial is not being treated with the seriousness it deserves.

To be told that I can't work for DP World unless I submit to this treatment is devastating for me, and I'm sure there are others.

Will you be terminating any employee who decides to stop being injected at any time going forward?

Can you not see this is leading to a very strange and dangerous place?

I hope you can see my many concerns and understand why I'm requesting more time to choose an option that suits my family going forward.

At this present time I myself am going through a real painful and frustrating shoulder injury, that leaves me unable to even pick up my own daughter, let alone find other work if I was terminated.

Once again, I am only asking for more time to make the 100% right choice for my health and future wellbeing.

I look forward to working at DP World for many more years to come.

Please don't hesitate to call if you need more information regarding any of the above."[113]

• [120] On 19 October 2021, Mr Parrott received the Sydney show cause letter from Mr Eadie requesting him to provide reasons as to why his employment should not be terminated without addressing any of the concerns he had raised in his 14 October email. Subsequently, on 25 October 2021, Mr Parrott was notified in writing by the Company that his employment was terminated with immediate effect. On 26 October 2021, Mr Parrott provided an email response to Mr Eadie and DP World Human Resources as follows:

In response to the email I received yesterday, I never refused anything, I asked for more time to consider my options as I have serious concerns about my own health, and the current treatments available.

DP World said they would review and contact me so I was waiting for some human contact, hopefully a meeting or at least a phone call, to discuss the situation.

So you have sent me a termination email without discussion, because I requested to assess my own personal concerns which include possible heart problems.

A meeting or phone call to discuss such major concerns should've been made immediately by DP World.

I am completely confused and utterly disappointed by this rushed decision to terminate my employment at DP World.

I also request a call to discuss possible bonus I am owed."

• [121] Under cross-examination, Mr Parrott said that he had sought an exemption from a doctor and had been told he would not get one unless he was dying of cancer.[114] Mr Parrott also said that he had serious concerns about receiving any vaccine that was available at that time for COVID-19 and would have required a lot more time - probably five or ten years - the time taken to test normal vaccines, to be convinced that they were safe.[115] In relation to his request to take unpaid leave, Mr Parrott had the following exchange with Mr Crilly:

"That unpaid leave wasn't going to end as a result of you becoming vaccinated against COVID‑19, was it? ‑Well, even though I say that between the five and 10 years, who knows if I would have made a decision in the time when that was running out or if things would have changed or the mandate would have changed, or the circumstances would have changed, anything like that. I just needed more time to make a decision. I never said that I was never going to, I said I wanted more time to sit with my family and make probably the most important decision of my life."[116]

• [122] Mr Parrott said that he was devastated to learn that DP World had terminated his employment, that his personal life has been very stressful and that he very much wants to return to work at DP World. At the hearing, Mr Parrott gave evidence that he has not secured other employment since his dismissal. In response to a question as to whether he had endeavoured to search for other employment, Mr Parrott said that he was currently receiving payments for workers' compensation because of a shoulder injury he sustained whilst working for DP World. He said that because of his injury, he had only applied for roles that were allowed according to his medical certificate and he has been unsuccessful in his search for employment. In cross-examination, Mr Parrott was asked whether he would be fit to perform his former duties should he be reinstated to his position with DP World and he said that he could not perform those duties because of his injury.[117] Mr Parrott confirmed that he continues to seek reinstatement. However, when he was asked whether he would be able to comply with the Mandate given that the Mandate is still in effect at DP World, Mr Parrott said that he remained unvaccinated and would not be able to comply.

• [123] Mr Danny Tanielu commenced employment with DP World Sydney on 11 November 2013 and at the time of his dismissal on 25 October 2021 had been employed by DP World for almost eight years. At the time he made his witness statement, Mr Danny Tanielu was 43 years of age.[118] Mr Danny Tanielu is a member of the MUA and was represented by the Union in these proceedings. In response to the 16 September 2021 Mandate announcement, Mr Danny Tanielu sent an email on 3 October 2021 to DP World outlining the issues around DP World's proposed vaccine mandate and the vaccines themselves and providing "searchable facts" to back up his claims. This email was in substantially the same terms as the email sent by Mr Tosh set out above.[119]

• [124] In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Danny Tanielu sent an email on 18 October 2021 to DP World expressing that he held genuine concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Danny Tanielu relevantly stated:

Firstly, I am NOT refusing to work rather I have been refused work. I am fully able and readily available to continue my full duties.

I have been refused work all because I have made an informed choice not to take any of the 3 vaccines currently available.

I am not anti-vax or pro-vax. I am pro freedom of choice when it comes to my health and wellbeing which is a basic human right that cannot be infringed.

Especially when the Former Premier had not declared NSW in a state of emergency.

I feel that you as my employer provided me no opportunity or ample time for consultation or to find a resolution/compromise to my situation. Especially heartbreaking when a 16 September 2021 email from CEO Andrew Adam states 'We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy'.

This is evident because on the 25 August 2021 (before the deadline) I sent an email response to the companies 20 August 2021 email about vaccination status. An email I didn't know about until the 23rd August 2021 when I came into work on my 1st shift after my holiday.

My response email (25 Aug 2021) I sent on my own accord because the email on the 20th August 2021 didn't indicate those choosing to remain unvaccinated needed to do anything.

I did so anyway to do the right thing by the company. I received no response to that email. If someone had responded I would of (sic) told them the reason, that it conflicts with my religious beliefs and moral code.

This is evidenced in emails from DP World dated 26 March, 21 April and 15th July 2021 which states and I quote: "...the right of every individual to choose whether or not to be vaccinated, based on their own beliefs and on the best science available."

When I did get in contact with HR I was told my only option was to take my annual leave until I was vaccinated. I felt bullied out of my decision and felt forced to capitulate.

I felt let down because this company has been so supportive and helpful in the past. I could always rely on a safe space to be able to work and interact with co-workers.

Even though vaccines were available at the end of March 2021. That wasn't exclusive to DP World or our workforce.

Also it wasn't until 5 August 2021 Andrew Adam CEO made a statement supporting CV19 vaccine roll-out across DP World Australia then it took until 20th August 2021 for DPW Sydney to do anything operationally.

For approx 16 months, we as a company did a splendid job mitigating the risk with masks, hygiene protocols and social distancing. Even right up to the 16 August 2021 email where there was still no push for a vaccine but another measure was introduced: QR coding.

This period of time has left me feeling vulnerable. I just felt abandoned, outcast and left to feel guilty, including when I turned up to work and faced my superiors and my peers. I felt a lack of support from my co-workers and management leaving me with anxiety, stress and insomnia. It left me feeling resentful of my peers and my work. I felt discriminated against. I feel a duty of care was lacking when it came to dealing with this situation.

I feel the company over reacted, its response was disproportionate, given we had no direct infections over that approx 16 months. Especially when more people have died from the flu in 12 months (1500), yet CV19 has just reached 1440 in 18 months. Even then, the company had a flu vaccination program performed by a third party as per 8 April 2021 email, but those were "non- compulsory". Yet you want to force me to take these CV19 vaccines?

I believe we can find a resolution. Put aside everything that has happened and I can, we all can get back to work. Especially as many other large companies like banks and other factories have just gone back to normal. Vaccinated and unvaccinated working side by side. So I believe we can do the same here. Find a positive way to move forward and live and work with COVID19." [120]

• [125] Mr Danny Tanielu said Mr Eadie did not respond to any of the concerns outlined in his emails. On 22 October 2021, Mr Danny Tanielu sent an email to DP World in response to the Sydney show cause letter, setting out reasons why he believed the Company should not terminate his employment, in the following terms:

Again I am not refusing to work, I have been refused work.

A person conscious of his co-workers and others, always having a positive attitude when I come to work.

My job is in jeopardy not of my doing but the companies unwillingness and stubbornness to come to the table and find a practical solution.

This has put a huge strain on my mental health and physical health.

I'm formally complaining about the negligible duty of care shown. The lack of support by coworkers and management, the breach of privacy, and violation of basic human rights.

Especially when the Federal government went through National Cabinet NOT Federal cabinet to declare a national emergency and the former State Premier didn't officially declare a State of Emergency either through the right channels.

I'm disappointed in this whole process. The lack of a personal response but cookie cutter, generic emails with no solutions or compromise or insensitive emails sending us to a third party to handle our problems like we're the sick ones.

If we truly were a threat, it made no sense that during this lockdown period that DP World would roster on unvaccinated employees.

And now with 3 ppl, double vaxxed at work since only mid September testing positive for CV19. This highlights the hypocrisy and contradictory environment management has created at work and it proves my point of mismanagement." [121]

• [126] On 25 October 2021, Mr Danny Tanielu was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [127] Under cross-examination Mr Danny Tanielu agreed that the first email he sent to DP World Sydney in response to the Mandate announcement was a document that a group of employees put together, although he was not aware of the document being downloaded from a particular website.[122] Mr Danny Tanielu agreed that he became aware of the Mandate on 16 September 2021 and received the Sydney information letter dated 14 October 2021 advising that he needed to comply by specified dates. Mr Danny Tanielu also agreed that he knew that DP World Sydney was considering terminating his employment as stated in the Sydney show cause letter because he would not receive a COVID-19 vaccination, that it was his choice to make this decision and that he knew there would be financial consequences.[123]

• [128] Mr Danny Tanielu was devastated to learn that DP World had terminated his employment and said that he felt discriminated against "like an outcast" as he was made to feel ashamed of his decision. He was the sole income earner for his family of three as he had taken in his elderly father and his partner to live with him a year prior to his termination and he had no idea how he was going to provide for them. A few weeks after Mr Danny Tanielu was dismissed, his elderly father became gravely ill with a debilitating illness which he has not recovered from. For the period between November 2021 and March 2023, Mr Danny Tanielu was his father's carer until his father was finally well enough to go home to Samoa. During that time, he was not able to work full-time or part-time because of caring responsibilities. Mr Danny Tanielu said if he had not been dismissed by DP World, he would have been able to afford to put his father in a care facility.

• [129] Since April 2022, Mr Danny Tanielu has been surviving on JobSeeker payments. Prior to that, he was receiving a carer allowance and rental assistance from Centrelink, but these subsidies ended when his father went home to Samoa. Mr Danny Tanielu is currently homeless as he cannot afford to pay rent. His JobSeeker payment is about $350 per week, and he is struggling financially.

• [130] At the hearing, Mr Danny Tanielu confirmed that as part of the requirements for receiving JobSeeker payments, he is required to apply for 20 jobs per month but has been unsuccessful in his search for employment and other than being carer for his father, has not obtained other employment since his dismissal. Mr Danny Tanielu is not vaccinated against COVID-19.

• [131] Mr Heath was employed by DP World Sydney from October 2010 and at the time of his dismissal on 25 October 2021, had been employed by DP World for eleven years. At the time of making his witness statement, Mr Heath was 38 years of age.[124] Mr Heath is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Heath sent an email on 18 October 2021 to DP World expressing his concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Heath relevantly stated:

"I am writing in response to your email regarding vaccination mandate dated 12th Oct.

I have been employed by DP world since 2010 and during that time I have always fulfilled my duties and upheld my contract of employment. This is a difficult period of time for everyone and particularly for myself. Personally the decision by DpWorld to bring in this mandate has caused me a lot of stress. It has also caused workplace bullying and division.

I understand it's a safety based policy but it needs to be addressed that an emergency use vaccine might make some feel safe but at the same time make others feel unsafe. I believe it's a personal health decision that shouldn't be made by anyone other than the individual.

If it's something that an individual chooses that's their right, but the choice should be made in accordance with the Australian Governments own guidelines which state it must be given voluntarily in the absence of undue pressure, coercion or manipulation. I would like to have that choice myself and not be coerced or manipulated by DPWorlds policy.

The reasons for not terminating my employment, I've always been a loyal hard working employee, never had disciplinary issues and I don't want to be terminated. I hope that there can be an outcome that means I can continue working for DPWorld.

I would also like to be given access to the large amounts of accrued leave I have saved, including long service, sick and annual leave totalling over 5 months. By that time I hope an outcome can be reached."[125]

• [132] In response to the 19 October 2021 Sydney show cause letter from Mr Eadie, Mr Heath said he corresponded with Mr Eadie again to highlight his concerns with respect to the COVID‑19 vaccines and referred Mr Eadie to his 18 October email. On 22 October 2021, Mr Heath sent an email to DP World in the following terms:

"I have never stated that I am unwilling to comply with the covid 19 vaccination. Before I can consider this medical procedure under DpWorlds mandate I would like to see the risk assessment that shows an unvaccinated person is more of a threat than a vaccinated person in the workplace. Can you also provide evidence to prove the vaccines available are safe, effective and necessary.

Please see my previous email in regards to why my employment shouldn't be terminated. I have also been made aware that a list with my name on it has been circulating around port botany terminal. I am not confident that DPWorld takes the security of my medical information seriously. If as stated in your previous email - Information is stored securely and confidentially by human resources in and is only accessible to HR personnel at your site.

How is it possible that this list has been hand written by multiple people and shared with anyone outside of the HR department?"[126]

• [133] On 25 October 2021, Mr Heath was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [134] Mr Heath said he was devastated to learn that DP World had terminated his employment. He was the sole income earner in his household as his partner's business had been completely shut down by COVID-19 restrictions and she was ineligible for any government assistance because she is not an Australian citizen. Mr Heath said he has not been able to find other employment since his dismissal and has been living on his savings. Mr Heath has a mortgage and general bills that need to be paid and is struggling financially and with his mental health. He said that the financial pressure has caused difficulties in his relationship and that he and his partner are at the point where they would have to sell their family home.

• [135] At the hearing, Mr Heath was questioned as to the outcome he was hoping to achieve by requesting access to his 5 months of accrued leave entitlements. Mr Health said that he had been hoping that he would have the time to see whether the vaccines were safe and effective if that leave had been given to him, but no one from DP World management spoke to him about his emails or request.[127] Mr Heath also confirmed that while he continues to seek reinstatement, he is not currently vaccinated and would not be able to comply with the Mandate.[128] Mr Heath confirmed that having received a letter from Mr Eadie stating that DP World Sydney was considering terminating his employment because he had not provided proof of vaccination, he still chose not to be vaccinated and his employment was terminated.[129]

• [136] In relation to his assertion that his name appeared on a handwritten list said to be a list of unvaccinated employees being circulated at the terminal, Mr Heath said his assumption was that DP World HR must have been involved because only DP World HR would have access to the information about employees' vaccination status. It was put to Mr Heath that the list could have been compiled and circulated by other employees after 15 October 2021 (being the date by which employees were required to have their first dose of vaccination under the Mandate) by observing which colleagues were absent from the workplace after that date. Mr Heath said he could not recall the dates that he saw the list but said it was prior to 15 October 2021. Mr Health further stated that what he saw was a photo of the list rather than the actual list itself and he did not discuss the list with DP World until his email of 22 October 2021.[130]

• [137] Mr Jones commenced employment at DP World Sydney on 13 October 2008. When he was dismissed on 25 October 2021, Mr Jones had been employed by the Company for 13 years. Mr Jones stated that he has a blemish free record and was a solid, reliable and productive worker. At the time he made his witness statement, Mr Jones was 49 years of age.[131] Mr Jones is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie in relation to the dates for compliance with the Mandate, Mr Jones sent an email on 18 October to DP World expressing his concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Jones relevantly stated:

"I am writing to you to ask to NOT terminate my employment.

I have been employed by DPW since 13 October 2008. In that time, I have been a very good productive employee who has not caused any trouble or issues for those who have overseen me, and those that I have worked with.

I have held the highest standards for myself in all facets of my work whether it be safety, productivity, accuracy, efficiency, availability, and punctuality. I have always strived to hold the levels of my work and personal standards as high as possible whilst encouraging and challenging others to do the same.

My personal reasons for not taking this experimental medical procedure are, I have weighed up the personal risks to myself (and my son whom I primarily have in my care), especially with the lack of any long-term data versus any potential benefits (which are few). On any given day, I may be utilised to work at DPW for 8 hours a day. There is 16 hours a day that I need to be at my best to provide and care for my son that this mandate could potentially be affecting. I think it is a gross over-reach by DPW to mandate such an experimental medical procedure that can have such major repercussions on my well-being (and in turn that of my son) as well as the hundreds of employees who have already been coerced into it. This is not a decision I have come to lightly and I have been through hell in the last month and a half and am continuing ongoing counselling to deal with this. The very real stress I have been through and continue to go through has already affected myself and my family. It is unnecessary, it is unfair, and it is unjust. There is also no REAL data to support that unvaccinated people are any more risk to catch, carry or transmit COVID than those who are fully vaccinated so even to DPW there is no real benefit to this mandate, it is a complete and utter nonsense.

If you were to terminate my 13 years of employment for this reason I would just like you to know you would be cutting off my means to put a roof over our heads and food on our table. I am a New Zealand citizen who arrived in late December 2001, which makes me ineligible for any type of normal income support from the government once the covid disaster payment ceases which is most likely a fortnights time. Having a bare minimum income for the last month and a half has already plunged me into financial hardship. I understand that you will say it is my choice to do this, but I believe that if I were to submit to this experimental medical procedure, I would no doubt be subscribing to all and any experimental procedures that will be following. I also believe that they would ALL be detrimental to my health within 5 years and that is why I have chosen NOT to subscribe to this system. I need to be here to raise my son!

Again, I plead with your better nature to not terminate my employment. I do NOT deserve to be terminated. All I want to do is return to work and move thousands and thousands of containers like I have done up to now!"[132]

• [138] On 19 October 2021, Mr Jones received the Sydney show cause letter from Mr Eadie requesting him to show cause why his employment should not be terminated. Mr Eadie did not address any of the concerns raised in Mr Jones' 18 October email. Subsequently, on 25 October 2021, Mr Jones was notified in writing by the Company that his employment was terminated with immediate effect and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice.

• [139] Mr Jones said he was devastated to learn that DP World had terminated his employment, and he was the sole income earner as he had been separated from his wife of 10 years for 12 months prior to his dismissal and was the primary carer for his son Monday to Friday. Mr Jones said he had no idea how he was going to provide for himself and his son during this time.

• [140] In oral evidence in chief, Mr Jones said that after his dismissal he was not able to work for quite some time because of circumstances including that unvaccinated people were not being hired. Mr Jones said he was able to find work in the construction industry via an agency on 27 February 2022 and continued in this work for almost 12 months. In December 2022, Mr Jones obtained work picking and packing truck parts. However, during the period of unemployment, he was under extreme financial pressure and had to negotiate with his creditors based on hardship. It was also made extremely difficult for Mr Jones to budget his finances and plan his time. Mr Jones stated that the heightened financial pressure flowed on to intense emotional and mental anguish which was also felt by his son. He sought counselling through DP World's Employee Assistance Programme but said that the duration was not long enough for what was needed.

• [141] The work Mr Jones secured was casual in nature and did not offer the financial stability he needed. Mr Jones worked dayshifts, afternoon shifts and night shifts but always in an irregular fashion and had to change his childcare arrangements for his son which resulted in frustration and resentment from his ex-wife due to the irregular nature of his employment and his inability to give notice to his ex-wife of those changes.

• [142] Mr Jones started employment at Volvo Truck Parts in Minto, NSW on 24 December 2022 as a casual employee. The work is insecure, and he has had to change his childcare arrangements again as this job is now dayshift only. He has suffered further financial stress due to a recent need to travel to New Zealand for 3 weeks as a result of his father's death and because he was a casual employee there were periods where he did not earn an income[133]. Mr Jones said that the money he was required to spend on the trip was money he had set aside for rent and bills, and it was 4 weeks before he had any income coming in again resulting in tremendous financial pressure. The loss of his employment at DP World has caused Mr Jones to fall behind financially and he has not been able to keep up and this has also affected his quality of life and that of his son.

• [143] Under cross-examination, Mr Jones agreed he knew that DP World was going to terminate his employment because he was not vaccinated. In response to the proposition that he continued with his choice not to be vaccinated knowing that he would be dismissed, Mr Jones said that he continued to voice his concerns and showed that he was hesitant to receive a vaccination. In response to the proposition that he did not go out and get vaccinated to keep his job, Mr Jones said that his concerns about vaccination outweighed other considerations and agreed that he knew that losing his job would have financial consequences.[134]

• [144] Mr Pintley commenced employment with DP World Sydney on 7 December 2009 as a casual employee before obtaining full-time employment in January 2018 and working on that basis until his dismissal on 25 October 2021. At the time he made his witness statement, Mr Pintley was 49 years of age.[135] Mr Pintley represented himself in these proceedings. Mr Pintley took personal leave from 28 June 2021 due to bullying and harassment he claimed to have been experiencing at DP World Sydney. As Mr Pintley was on leave, he did not have the capacity to keep abreast with the constant emails "coercing vaccination or face termination" and this caused him further stress and anxiety.

• [145] In response to the 16 September 2021 Mandate announcement, Mr Pintley sent an email on 3 October 2021 to DP World expressing his views about the COVID-19 vaccine and his hesitancy to be vaccinated. This email was in substantially the same terms as the email sent by Mr Tosh and other employees, set out above.[136]

• [146] Following Mr Pintley receiving the 12 October 2021 Sydney information letter from Mr Eadie, he received another letter from Mr Eadie dated 18 October 2021. In the 18 October letter, DP World acknowledged that Mr Pintley was on medical leave until 28 October 2021, but because he had not submitted his vaccination status, he was advised that he would be put on unpaid leave from 18 October 2021. Mr Pintley was also informed that he was entitled to apply for annual leave from 18 October to 24 October 2021. On 25 October 2021, Mr Pintley was notified in writing that the Company was terminating his employment with immediate effect and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice.

• [147] Mr Pintley said that when DP World terminated his employment on 25 October 2021, he was on workers' compensation leave. His workers' compensation insurer accepted liability for his injury on 22 October 2021.[137] At the time of his dismissal, Mr Pintley had not been at work since 26 June 2021, and maintained that he presented no risk to the health, safety, and welfare of any employee. Mr Pintley said he was devastated to learn that DP World had terminated his employment, he was the sole income earner for his family of four and he had no idea how he was going to provide for his family. He said not only has he had to process the incidents which occurred at DP World that disregarded his health and safety, but when he received the termination letter, he also felt devastated because DP World was aware of his struggles and yet did not approach him to discuss other suitable options for that period.

• [148] Mr Pintley said he has rent and general bills that need to be paid, and his workers' compensation payment is about $1,703 per week. Mr Pintley said that he is struggling financially, and his life has been very stressful from the bullying and harassment he experienced at DP World and the termination compounded his mental health issues for which he has been seeking medical support.

• [149] Mr Pintley expressed the view that terminating his employment because of a medical decision "not to inject a provisionally approved vaccine" into his body is unjust and "simply unsafe". He said that no government, doctor or scientist could guarantee the long-term health outcomes from taking the vaccine. Mr Pintley further stated that he had other mitigating circumstances that exempted him from compliance with the Mandate in the period when it was initially adopted, because he had no capacity to work and was not a risk. Mr Pintley sought compensation from the Company.

• [150] At the hearing, Mr Pintley stated that he had been receiving workers' compensation up until recently and had not searched for other employment as he still did not have any capacity to work. Mr Pintley confirmed that he continues to seek reinstatement and when asked whether he would be able to comply with the Mandate if he was reinstated, Mr Pintley's response was "I didn't say I wouldn't comply with it, I just said I reserve my right to make that decision after there's a decision made at the hearing."[138] Mr Pintley agreed that the matters dealt with in his statement that he had been cross-examined about in the valid reason proceedings, could be referred to by the Respondent in its submissions in these proceedings.[139]

• [151] Mr Lovas commenced employment with DP World Sydney on 13 October 2008. Prior to his dismissal on 2 November 2021, Mr Lovas had been employed by the DP World for 13 years. When he made his witness statement, Mr Lovas was 54 years of age.[140] Mr Lovas is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Lovas sent an email on 18 October 2021 to DP World Sydney, expressing his concerns about the COVID-19 vaccine and his hesitancy to be vaccinated. In his email, Mr Lovas relevantly stated:

"Being employed at DP World Port Botany terminal for the past 13 years as a stevedore is a great experience.

It's always a pleasure to be working there with such a great team of specialist employees.

I really don't want DP World to terminate my employment based on me not having a Covid 19 vaccine yet!

As stated in previous emails, I require more time to see the specialist.

My appointment to consult with Professor John Quinn, Immunologist/ allergy specialist is on the 6th December.

My hesitancy is due to medical advice of possible anaphylaxis adverse reaction sustained due to my condition.

Medical practitioners I've consulted with have not provided a contraindication and advised to wait for the specialist's advice.

Immediately after seeing the specialist on December 6th, as advised I will either get the Covid-19 vaccination or be provided with an exemption.

Having spent some weeks off work already due to local area restrictions and vaccination has not been easy, causing stress, anxiety and hardship.

I am requesting and would appreciate for DP World to keep me employed, either on long service, annual or unpaid leave until I'm advised by the specialist.

I've been staying covid safe and adhering to NSW health regulations.

I'm more than willing to return to work, utilizing PPE and any PCR, oral or antigen testing specified at my expense."[141]

• [152] Mr Lovas said that the 19 October 2021 Sydney show cause letter did not respond to any of his concerns. On 22 October 2021, Mr Lovas resent the email of 18 October 2021 as his reasons why DP World should not terminate his employment. Mr Lovas confirmed that no response was provided by DP World and on 2 November 2021 Mr Lovas received a letter notifying that his employment was terminated with immediate effect and that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice. [142]

• [153] In relation to the COVID-19 vaccination, Mr Lovas said that he is not against vaccinations, but he wished to seek proper professional medical advice and undergo medical testing for extreme allergic reactions. Mr Lovas said that he has severe allergies and carries an EpiPen with him, and his health and wellbeing was of great concern to him. Mr Lovas said that he had an appointment with Professor Quin, an immunologist, on 6 December 2021 and during the appointment, Mr Lovas was informed that there were no available reagents for medical testing in relation to his reaction to the vaccine. Mr Lovas was then referred to Dr Taylor, Professor of Immunology at Liverpool Hospital. After some time and numerous attempts to contact Dr Taylor, Mr Lovas said he received a call from Dr Taylor in mid-February 2022 explaining that New South Wales was not receiving any more reagents for testing COVID-19 and it was up to him if he chose to take any risk with receiving the COVID-19 vaccine.

• [154] Mr Lovas said that it has been a very stressful and difficult time since his dismissal. He has been financially supporting his partner, who has had mental health issues, for the last ten years and he did not work for seven months after being dismissed. Mr Lovas' mother passed away in February 2022. Mr Lovas said he had tried numerous times to get steady employment since being dismissed but believes that his age limits his ability to be selected in a full-time position. Mr Lovas said that currently, he received casual employment through a labour-hire agency and the work on average is one to two days a week. The pay is significantly less that his income at DP World, and the work is insecure and unpredictable, as he does not know his shifts or whether he would be working from one day to the next.

• [155] At the hearing, Mr Lovas tendered into evidence his income statement from the ATO for the financial year of 2022-23.[143] In that statement, it shows that Mr Lovas received a gross income of $28,262.97 for that financial year and he confirmed that this was the income he received through casual work from the labour-hire agency.

• [156] In his oral evidence at the hearing, Mr Lovas reiterated that he has severe allergies and carries an EpiPen with him.[144] Mr Lovas had the following exchange with his representative Mr Bond:

So if DP World has a vaccine mandate in place, and you were reinstated, would you be willing to become vaccinated, or is that something that's no in the current ‑ ‑ ‑? ‑No, I'm sure my doctor would give me a contraindication this time. I wasn't able to get fully tested for my allergies to the vaccine as New South Wales - I was told by the doctors at Liverpool, by Mark Taylor(?), that they're no longer bringing in any reagents for testing for COVID-19 as they are too expensive and their shelf life is very low. And I found this very distressing, I mean, it was so difficult for me trying to get tested for if I can take the vaccine or not, and in the end, it never came to fruition whether there was an answer to that or not. And the only way I was able to deal with it is just to let it go for now. And I contracted COVID last February and my doctor did me a contraindication for a few months, and it was, I think, around December last year I asked my doctor, 'Do I need to get vaccinated now?' 'Should I continue to somehow maybe even go to a different country who does test for COVID-19, to get the vaccination?' And they told me, 'Look, I don't think it's going to be necessary; the vaccine didn't prove to be as effective as we thought it might have been.' That's the remark my doctor gave me, and I think he would be more inclined to give me a contraindication in the future if I was to get my job back.[145]

• [157] Under cross-examination, Mr Lovas agreed that he lives in an area of concern and that prior to the events leading to his dismissal he was unable to attend work at the DP World Sydney Terminal in September and early October because he was not vaccinated against COVID-19.[146] Mr Lovas also agreed that he has been speaking to doctors about a contraindication certificate since around August 2021 and in that time has seen several GPs, a haematologist and an immunologist but has not obtained a certificate from any of those practitioners. In response to questions from me, Mr Lovas gave evidence as follows:

"When have you seen those specialists, Mr Lovas? Between what dates?---My original appointment was with Dr William Chan, immunologist, and that was for the end of August or the beginning of September, but I never got a call back from him so I went back to my GP and - or actually, I tried calling him direct and they said he's retired, and I thought that was pretty amazing because I was supposed to be receiving news from him regarding my allergies for ...I never heard from him. So then my general practitioner pointed me to Dr John Quinn, immunologist, and I scheduled an appointment with them for the 6th ...

Because I was being pressured from DP World, I did call them up and say, 'Is there any chance I can get this done sooner?' And they said, 'We'll get back to you'. And then finally, when they did get back to me, there was no way I could have seen him before 6 December.

All right. So when you saw him on 6 December, did you ask him for a contraindication? --- Yes, I did.

And did he give you one? --- No. Because he said, 'I can't test you without the reagents'. So he appointed me to Dr Mark Taylor from Liverpool Hospital, immunologist.

All right? --- And I never - I said, 'Do I need to schedule an appointment or anything?' They said, 'No, they will contact you'. And it wasn't till mid-February when I was contacted by Dr Mark Taylor.

All right? --- Even though I did actually harass the hospital trying to get a hold of him and they told me, 'This is going to become a police issue if you keep harassing, trying to find Mark Taylor'. So I said, 'I'm just letting this go'. And I waited; it was mid-February when Mark Taylor contacted me and told me, 'Look, Tom, we're not getting any of these reagents into the hospital or into New South Wales in the future'. I said, 'That's pretty ridiculous'. And I said, 'I need to get tested'. And in the end, that was it. He said, 'Look, it's going to be up to you whether you take the vaccine or not'. I said, 'So I can't get contraindication or anything?' They said, 'No'. So I just felt stuck. I didn't know what else to do. So I had to let it go for my sanity." [147]

• [158] Mr Grujevski's Form F2 Application was made on his behalf by the MUA. The Form F2 states that Mr Grujevski commenced employment as a stevedore with DP World Sydney in 2010 and that his dismissal took effect on 25 October 2021. On or about 16 September 2021, Mr Grujevski received the Mandate announcement from Mr Adam stating that DP World had "made the decision to make COVID-19 vaccination for all employees and contractors a condition of employment". Mr Grujevski received the Sydney information letter on 12 October 2021 advising that he was required to provide DP World Sydney his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose. Mr Grujevski was required to receive a second dose by 15 November 2021. On 19 October 2021, Mr Grujevski received the Sydney show cause letter from Mr Eadie inviting him to provide reasons why his employment should not be terminated on the basis that he was unwilling to comply with the requirement to be vaccinated and that he could no longer meet the requirements for performing work at DP World. On 25 October 2021, Mr Grujevski was notified in writing that his employment was terminated with immediate effect because his decision not to be vaccinated was, in Company's view, "untenable" and "inconsistent with ongoing employment relationship".

• [159] Mr Grujevski's Form F2 application states that the dismissal was harsh, unjust or unreasonable because inter alia there was no valid reason for the dismissal, Mr Grujevski was not afforded procedural fairness, and on the basis of his economic circumstances and his length of service. Mr Grujevski did not give evidence in the valid reason proceedings. As previously noted, he declined to attend the hearing in these proceedings and as a result, I decided not to receive his witness statement because it was unsworn, unsigned, and Mr Grujevski was not available to swear to its truth nor to be cross-examined on its contents.

• [160] Mr MacDonald commenced employment with DP World Brisbane on 26 March 2007, resigned in early 2008 to pursue an electrical apprenticeship and returned to DP World after approximately 6 months. Mr MacDonald said he returned because he realised what a good job he had at DP World and that he had no intention of ever leaving again until the 2009 Global Financial Crisis that led to the termination of all supplementary employees, including himself. Mr MacDonald explained that he was gone for another 6 months before returning to DP World Brisbane.

• [161] Prior to his dismissal on 17 November 2021, Mr MacDonald had been employed by DP World for about 14 years from his original start date. The total time Mr MacDonald worked for the Company was approximately 13.5 years taking into account the two 6-month periods where he worked somewhere else. Mr MacDonald said he would have happily worked for DP World for another 15 or so years until his retirement, and still would if given the opportunity. Mr MacDonald worked as a PPT / VSE stevedore for the remainder of his employment. At the time Mr MacDonald made his witness statement, he was 51 years of age.[148] Mr MacDonald represented himself in the valid reason proceedings and was represented by the MUA in these proceedings.

• [162] Mr MacDonald received the Mandate announcement from Mr Adam on 16 September 2021, notifying that the Company had "made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement" and the 12 October 2021 Brisbane information letter from Mr Hanley notifying of the requirements of the Mandate. On 26 October 2021, Mr MacDonald received the second Brisbane information letter by email from Mr Muscat, Manager - Human Resources, stating that DP World had not received evidence of his COVID-19 vaccination. Later that day, Mr MacDonald emailed Mr Muscat stating the following:

"Hi Greg, apologies for the late reply in response to your emails. As previously discussed, I will comply with any Lawful direction but in order to do so I am going to need that direction on paper from you, preferably in the form of a Legal Notice, with D.P World letterhead and a wet ink signature.

I don't have a printer and can't comfortably read the content of email attachments on my phone which is my main communication device and don't have an application that opens Microsoft Word Documents. I don't think it unreasonable to expect such an important document to be given the same treatment as various past matters of much lower importance which have always been put on paper and more often than not sent to my home. Obviously time is running out so I don't expect it to be posted but I will gladly accept hand delivery from the Supervisor on shift as soon as possible."[149]

• [163] In cross-examination, Mr MacDonald was questioned about the significance of his request that he be provided with a "lawful direction... on paper... preferably in the form of a Legal Notice, with D.P World letterhead and a wet ink signature". In response, Mr MacDonald said that he learned this from the internet and believed that when people put their name on paper and sign it with wet ink, it held more weight in legal matters.

• [164] Mr MacDonald was one of the employees who took action in the Federal Court in relation to their dismissal. Mr MacDonald and other Brisbane Applicants[150] were represented by Green & Associates in those proceedings. On 2 November 2021, Mr MacDonald received the Brisbane show cause letter from Mr Hanley inviting him to provide reasons as to why DP World should not terminate his employment due to his failure to comply with the Mandate. On 17 November 2021, Mr MacDonald received a letter from Mr Hanley notifying him that DP World was terminating his employment with immediate effect and that he would be paid any outstanding entitlements including five weeks' pay in lieu of notice.

• [165] Mr MacDonald said he was devastated to learn that DP World had terminated his employment. He is the sole income earner for his family, and he had no idea how he was going to provide for them. In June 2022, Mr MacDonald started casual employment at Townsville Marine Logistics (TML) after resigning from a refuelling job he had between November 2021 and June 2022. Mr MacDonald is currently employed as a Supplementary Stevedore at TML and simultaneously at Linx Cargo Care, but he said the work from both employers is casual, very sporadic, highly insecure and virtually non-existent a lot of the time. Mr MacDonald was also simultaneously employed on a casual basis by a third employer until recently, but that job has completely dried up and is unlikely to resume. Mr MacDonald also took time off to visit his sick mother in hospital in Victoria.

• [166] As a Supplementary Stevedore working for two competing companies in the same Australian Amalgamated Terminals (AAT) - Brisbane Terminal, Mr MacDonald explained that he does not know his shifts from one day to the next and must be very careful about how he manages his availability or risks missing out on what little work is available or potentially losing one or both jobs due to Company rivalry or politics. Mr MacDonald explained that this makes it very difficult to budget his finances and plan his time or have anything that resembles a decent work life balance. In addition, Mr MacDonald explained that he has consistently been earning less since the termination of his employment with DP World and has had fortnights where he did not earn enough to cover his basic living expenses and found himself going backwards fast and struggling financially.

• [167] Mr MacDonald has a mortgage and general bills that need to be paid and his daughter is in her final year of private school. Mr MacDonald does not have a base rate of pay or any guaranteed income but estimated that his average income is about $1,200 per week. Further, Mr MacDonald's personal life has been very stressful. In addition to his dismissal, he has been dealing with the exacerbation of PTSD which he developed in the army and said that this time has also been challenging for the mental health of his wife and daughter and the uncertainty has taken a toll on both. Mr MacDonald said he very much wants to return to work at DP World and resume the job that he loves and is good at.

• [168] At the hearing, Mr MacDonald stated that prior to his termination, his general earnings as a varied salaried employee (VSE) were about $110,000 annually. Mr MacDonald accepted that at the time of his dismissal, his classification as a VSE under the Agreement was Grade 2 as opposed to Grade 4. Mr MacDonald also stated that after his dismissal and within the previous financial year, he worked four jobs - Links Cargo, Adecco Industrial, TML and Bulk Fuel Australia. Immediately after leaving DP World, Mr MacDonald worked for Bulk Fuel Australia. Following that, he worked the other jobs simultaneously. At the time of the hearing, Mr MacDonald was employed at Links Cargo and TML only. A screenshot of his online ATO account tendered at the hearing, shows that Mr MacDonald had a total income of $100,487.48 from the four jobs he referred to, in the financial year of 2022-23. He said he does not expect to get anywhere near the $100,000 range again from the two jobs he currently has.

• [169] In cross-examination, Mr MacDonald accepted that in the initial hearing relating to valid reason, the material he filed in the Commission contained statements to the effect that DP World was "trying to force [him] to be injected with a concoction of completely unknown and potentially harmful substance". He also accepted that he did not give DP World evidence of his vaccination status nor a contraindication certificate and while he was aware that termination was a possible consequence, he did not believe that the Company would go to such drastic steps, and that there would be some level of consultation.

• [170] In relation to remedy, Mr MacDonald confirmed that he is seeking reinstatement. Mr MacDonald also confirmed that he is not currently vaccinated and if reinstated, he would discuss this matter with his doctor "based on all the currently available evidence to weigh up the risks and benefits, obviously, subject to a proper consultation process being conducted".[151] In response to my question as to whether if he were reinstated, he would require to be consulted, Mr MacDonald said he would like the opportunity to discuss the risks and benefits of using these products with the HSRs, the Company and his doctor.[152] Further, Mr MacDonald said he would also need to have "fully informed consent, as per the immunisation handbook".[153] Mr MacDonald also said that he has nothing but respect for DP World staff as he had worked with them for 14 years and holds nothing against them in relation to his dismissal and preceding events.

• [171] Mr Harriss commenced employment with DP World Brisbane on 3 June 2013. Prior to his dismissal on 17 November 2021, Mr Harriss had been employed by DP World for over eight years. When Mr Harriss made his witness statement, he was 33 years of age.[154] Mr Harriss is a member of the MUA and was represented by the Union in these proceedings. When Mr Harriss commenced employment at DP World Brisbane, he was employed on a casual basis as a general duties stevedore at Grade 2 B-Supplementary. After 10 months, he was moved to a supplementary position. Approximately 12 months later, he was promoted to the position of VSE on a permanent casual basis and worked as a VSE stevedore for 6 years and 6 months before being dismissed. Before his dismissal Mr Harriss was employed under the Grade 2 category of employment with skills for Grade 4 under the Brisbane Agreement.

• [172] On 28 June 2021, Mr Harriss received a letter stating that he had been successful in his application for the role of a back-up Quay Crane operator. Mr Harriss considered this to be a promising promotion which he said further solidified his career at DP World. In his employment at DP World, the majority of the work Mr Harriss performed was that of a Grade 4 straddle operator. Mr Harriss said he also performed general duties, lashing, twist locks, ITV internal transfer vehicle operations for outer dimension cargo and internal bus transport as required.

• [173] In response to Brisbane information letter of 12 October 2021 from Mr Hanley, outlining the requirements of the Mandate, Mr Harriss notified the Union that he held genuine concerns about the COVID-19 vaccine and expressed his hesitancy to be vaccinated. Specifically, in response to the Brisbane information letter, Mr Harriss attended emergency Union meetings. In Mr Harriss' witness statement, he set out the following "Personal Statement" which he said reflected how he felt at that time:

"I have been employed by DP world since 2013 and during that time I have always fulfilled my duties and upheld my contract of employment. This is a difficult period of time for everyone and particularly for myself as I had just received a successful application on 28th June 2021 for the promotion as a back-up Quay Crane Operator. Personally, the decision by DP World to bring in a "vaccine" mandate has caused me much stress and stripped me of the promising opportunities which took 8 years to get to. It also caused instantaneous workplace bullying and division, which was unnecessary in our workplace.

I believe it's a personal health decision that shouldn't be made by anyone other than the individual. If it's something that an individual chooses that's their right, but the choice should be made in accordance with the Australian Governments own guidelines which state it must be given voluntarily in the absence of undue pressure, coercion, or manipulation. I would like to have that choice myself and not be coerced or manipulated by DP Worlds policy and the threat of termination if I don't get vaccinated.

I have worked the entire pandemic at DP World with no issues regarding Covid-19 safe work practices and I have fulfilled my role as a Stevedore during this time as per normal. To now be told I'm unable to perform my duties at DP World, almost 2 years later from the start of the "pandemic" makes very little sense to me.

The reasons for not terminating my employment, I've always been a loyal hardworking employee, never had disciplinary issues, still willing to work and don't want to be terminated. I hope that there can be an outcome that means I can continue working for DP World.

I would have liked to have been given access to the accrued leave and/or unpaid leave, including long service, sick and annual leave. In time I believe this situation could be resolved.

Being terminated should be a last resort and through the correct consultation procedures we could have worked on a solution that worked for both parties, especially because my termination was not based on disciplinary behaviour. At the time, I felt pressured and coerced to make a decision based on a trial vaccine with no long-term data to support its efficacy or safety. I believe this is a very reasonable response."

• [174] Mr Harriss was one of the employees who took action in the Federal Court in relation to their dismissal. Mr Harriss accepted that he did not respond to DP World's show cause letter but said that his lawyers in the Federal Court proceedings responded on his behalf in a letter sent to the Company (extracted above under the heading "31 ".[155] It was put to Mr Harriss that the letter stated that all the employees involved in the Federal Court proceedings had particular medical concerns which led to their vaccine hesitancy. Mr Harriss' response was that he did not know what was in the letter sent by his lawyers, but he did not have any particular health reason that made him hesitant to get vaccinated.[156]

• [175] On 2 November 2021, Mr Harriss received the Brisbane show cause letter outlining the possibility of termination of his employment if he failed to comply with DP World's vaccination requirements. On 17 November 2021, Mr Harriss received a letter from Mr Hanley notifying him that DP World was terminating his employment with immediate effect and that he would be paid any outstanding entitlements including 4 weeks' pay in lieu of notice.

• [176] Mr Harriss said he was devastated to learn that DP World had terminated his employment. On 12 January 2022, he started working for Carlton & United Breweries (CUB) as a pallet repair technician. He said the work was casual, insecure employment and he did not know his shifts from week to week, with no guaranteed hours and a maximum of 3 shifts a week and his work schedule made it very difficult to budget and plan his time.

• [177] Subsequently, on 7 March 2022, Mr Harriss started a second job at TML (Townsville Marine Logistics). Mr Harriss is currently employed there as a Stevedore operating through AAT, a multipurpose terminal located right next door to DP World. This work is also casual, insecure employment and Mr Harriss does not know his shifts from one day to the next. He said he has found it extremely difficult to maintain 2 casual jobs, both with 12-hour shifts and overlapping time slots. Mr Harriss had to cease employment with CUB on 8 September 2022 due to stress and anxiety.

• [178] Mr Harriss explained that he has a mortgage, rent and general bills that need to be paid. Mr Harriss' base rate of pay varies from week to week as do his hours. Mr Harriss may be lucky to receive to 2 or 3 shifts a week, but he may not be rostered at all due to inconsistent shipping schedules. Mr Harriss said that this put a significant financial strain on himself and his family. Mr Harriss' personal life was also said to have been very stressful. In addition to his dismissal, Mr Harriss has been navigating some difficult family circumstances, including supporting his children and partner, with his youngest child, who has ADHD/ODD, going through some mental health difficulties. Mr Harriss has also been struggling with his own mental health and feelings of inadequacy and failure after his many years of dedication to DP World being disregarded. Mr Harriss said he very much wants to return to work at DP World.

• [179] In relation to an interaction outlined in Mr Hanley's evidence which occurred between Mr Harriss and Mr Hanley on 29 October 2021 and Mr Hanley's impression that Mr Harriss was "resigned to the fact that his employment would possibly end with DP World", Mr Harriss, in his witness statement in reply[157], rejected Mr Hanley's recollection of that interaction. Mr Harriss said his recollection of that interaction was to the following effect:

"[Mr Harriss]: I'm clearing out my locker and saying goodbye to some people because I don't know if I will be back.

[Mr Harriss]: Just because I am on sick leave does not mean I am sick Ben.

[Mr Harriss]: I am not sick, I am on sick leave for other reasons. You don't have to be physically sick to take sick leave. Is it a problem?

Anyway, thanks for everything over the years Ben.

[[Mr Harriss] then reached out to shake Mr Hanley's hand. Mr Hanley did not take it.]

[Mr Harriss]: Come on Ben I don't have COVID, just shake my hand.

[Mr Hanley reached out and shook [Mr Harriss'] hand.]"

• [180] After this exchange, Mr Harriss recalls walking downstairs and about five minutes later, Mr Hanley approached him, and they had the following exchange:

[Mr Harriss]: I am just about to lose my job. But yeah... I am ok."

• [181] Mr Harriss explained that he tried to appear brave to Mr Hanley, but the truth was that he was devastated. Mr Harriss said that his mental wellbeing was "at an all-time low". In the lead up to that day, Mr Harriss recounted that his grandmother, a close friend, and his family dog, passed away. Mr Harriss explained that he was under extreme mental and financial pressure from the thought of losing his job and was suffering serious depression and anxiety. Mr Harriss did not share this with DP World Brisbane at the time because he was trying to keep it together. Further, Mr Harriss rejected Mr Hanley's comment that he was resigned to the fact that his employment would possibly end and said that he did not share with Mr Hanley the full extent of what was going on in his life.

• [182] Under cross-examination, Mr Harriss confirmed that he did not send his Personal Statement to DP World or the Union. Mr Harriss was taken to his Personal Statement and questioned about his comment that he would like to have been given access to leave and his belief that in time the situation could be resolved. Mr Harriss confirmed that he felt that there was not enough time to consider options and that with consultation other avenues could have been looked at to accommodate everyone.[158] Mr Harriss confirmed that what he was saying is that if he had a chance to wait, DP World would have changed its policy.[159]

• [183] Mr Harriss also said he was "waiting for more time and more data, because there was no long-term data."[160] It was put to Mr Harriss that even if he had been given the chance to wait and be on leave, it would not have resulted in him becoming vaccinated and that he was only trying to wait it out. Mr Harriss said in response that he was never given the chance to express his concerns or to discuss leave or options because no consultation was undertaken by DP World and that:

"No, that's an assumption that is incorrect. I was waiting. There was a Novavax that was on the horizon, there was other things that could have been coming out. The ones at the time - I felt like the first ones on offer aren't always the best. They develop and they get better over time. All those opportunities were gone. There was nothing that was - it was literally just this is it, this is your only choice."[161]

• [184] In response to a question as to whether Mr Harriss wrote the Personal Statement himself or shared it, because it was essentially identical to communications from a number of other employees, Mr Harriss said he wrote the Statement himself with help from his partner and did not share it. Mr Harriss said it was his personal statement that he wrote[162] but he shared the "topic" with other employees going through the same thing as him and read out some of what he had said, but not in detail.[163]

• [185] In response to my question as to whether he communicated with DP World to let them know he wanted to talk about options, Mr Harriss said the following:

"No, because I didn't feel like they were approachable at the time because they were just like, 'This is happening and that's it.' Like I said, we had the toolbox talks with supervisors coming down and a bit of paperwork was dumped saying, 'This is the date and this is what's happening.' And like I said, I didn't know what to do. I didn't want to put myself at odds with the company that I enjoyed working at so I approached the union on my behalf and went to the emergency union meetings in regards to the mandate and tried to take their advice and follow suit that way."[164]

• [186] In response to a proposition that despite being aware that DP World was proposing to terminate his employment if he did not comply with the Mandate, he chose not to be vaccinated, Mr Harriss said that "it wasn't just I chose not be to vaccinated, there was a lot more going onto that."[165] Mr Harriss confirmed in cross-examination that he continues to be unvaccinated.

• [187] Mr Orel commenced employment with P&O Ports (later acquired by DP World) in October 1997 as a casual employee. He was trained as a trailer and Luxford conveyer operator and after two years was appointed as a permanent employee. Mr Orel was then upskilled to a Grade 4 Foreman and Crane Driver. A year later, he was upgraded to a Grade 5 Crane Driver - a position he remained in until his dismissal on 8 November 2021. As a Grade 5 Crane Driver, Mr Orel's main duties were to operate the Quay Cranes loading and discharging from cargo ships. In addition to those duties, he said he would perform the Grade 6 Foreman role in a relief capacity. At the time he made his witness statement, Mr Orel was 60 years of age.[166] Mr Orel is a member of the MUA and was represented by the Union in these proceedings.

• [188] Mr Orel received the Mandate announcement on 16 September 2021 which notified that he was required to provide DP World with "a copy of [his] COVID-19 digital certificate information to [his] HR Team via email..." by 15 October 2021. Subsequently, Mr Orel received the Brisbane information letter dated 12 October 2021 from Mr Hanley, notifying that he was required to comply with the Mandate and provide DP World with either his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose, by 28 October 2021.

• [189] Mr Orel was one of the employees who took action in the Federal Court in relation to their dismissal. The correspondence in relation to this matter involving Mr Orel is set out above under the heading "Common Correspondence". On 2 November 2021, Mr Orel received the Brisbane show cause letter outlining the possibility of his termination if he failed to comply with DP World's vaccination requirements. The show cause letter sent to Mr Orel also asserted that the fact that COVID-19 vaccination was a condition of employment at DP World Brisbane had been communicated to all employees in various ways, that he had been advised in correspondence on 13 and 26 October that the deadline for vaccination was approaching, what was to occur if he had not been vaccinated and that "the Company has received no response from you".

• [190] Notwithstanding his involvement in the Federal Court proceedings, Mr Orel sent an email to Mr Muscat on 4 November 2021 responding to the show cause letter and notifying DP World that he had genuine concerns about the mRNA COVID-19 vaccine, explaining his reasons for not taking the mRNA vaccine, and requesting to take his long service leave. Mr Orel's email was in the following terms:

"I am writing to you in response to the company's letter to myself dated 2nd November, 2021. The letter requests a response from me regarding my current decision not to take the vaccine.

Currently there are 3 Government approved Covid-19 vaccines which have been the only choices to date that meet the current vaccination requirements. I have decided not to take the current approved vaccines due to the mRNA in the vaccine and the unknown long-term effects as openly admitted by the company's that produced the vaccines and the TGA themselves.

I would like to bring to your attention of a fourth vaccine, "Novavax" which is in the final stages of approval with the TGA. Information about the Novavax vaccine for COVID-19 (health.gov.au) As stated on the Government website (please see link), once provisional status has been granted by the TGA it is expected that it will be available to the Australian public in 2021. New COVID-19 vaccine Novavax in final stages of approval for Australia (nine.com.au)

What I'm proposing, for the mutual benefit of the Company and myself, is that I be allowed to take long service leave or annual leave until the new vaccine (Novavax, which is protein based and made in the traditional way like the Flu vaccine) becomes available.

The benefit to the company would be that you will be retaining experienced personnel with key skills and many years of experience, whilst also alleviating any workplace health and safety issues. I understand taking long service at this moment in time doesn't fit into the parameters of the EBA, however, I think we can both agree that these are unusual times and call for a different approach to the situation at large.

I put this proposal forward to you and DP World as an alternative to the termination of a dedicated and loyal employee of many years."[168]

• [191] In relation to his email of 4 November 2021, Mr Orel attached to his witness statement a factsheet extracted from an Australian Government webpage entitled "Coronavirus (COVID-19) - Information about the Novavax vaccine for COVID-19" which stated that "it is expected that 51 million doses of the Novavax vaccine will be available in Australia in early 2022". On 8 November 2021, Mr Orel received a letter from Mr Hanley terminating his employment and rejecting his proposal to wait for the Novavax vaccine. The termination letter also stated that this proposal did not meet the requirements set out to him or the directive of the Company and asserted that he had been offered an opportunity to "discuss this matter with us" and had provided a reply by email dated 4 November 2021. On termination of his employment, Mr Orel was paid five weeks' pay in lieu of notice. Mr Orel was also one of the employees who took action in the Federal Court against DP World in relation to the termination of his employment but said he made only one payment to the law firm involved and then withdrew because he preferred to participate in these proceedings with the support of the MUA.

• [192] Mr Orel said that after 24 years of loyal service, he was completely devastated when his employment was terminated. He was the sole income earner for his family at that time. Since his dismissal by DP World, Mr Orel has worked at Carlton United Breweries at Yatala for a period of 6 months as a casual pallet repairer. He then started at TML on Fisherman Island as a casual Quay Crane Operator, Reach Stacker Operator and other general duties and is currently employed in that role. Mr Orel said that there is no certainty in his current role with TML as it is a new company and as a casual, at times he will only get one shift a week. He said that this means his family has to continually dip into their savings to keep on top of their mortgage payments and other expenses.

• [193] Since his dismissal, the financial and personal stress experienced by Mr Orel and his family has created uncertainty for Mr Orel's future. Mr Orel planned to retire in the next 6-7 years from DP World, but to be "discarded so callously" has left him angry and disillusioned. Mr Orel very much wants to return to work at DP World.

• [194] In relation to Mr Hanley's evidence that the version of the factsheet about the Novavax vaccine appended to his witness statement was last updated on 13 January 2022 and was therefore misleading, Mr Orel said that the attachment was not intended to be misleading. His 4 November 2021 email included information about the Novavax vaccine and a link to a government website which stated that "Once provisional status has been granted by the TGA it is expected that it will be available to the Australian public in 2021". Mr Orel said that his intention in attaching the factsheet to his witness statement was to provide context for the timeframe of the Novavax rollout, specifically highlighting that the gap between his termination and the availability of this vaccine was around 8 weeks. Further, Mr Orel said that because he was a permanent employee working on an 8-week roster cycle at the time, two weeks of rostered time off and the subsequent Christmas closure would have dramatically cut down on the amount of leave he would have been required to take while awaiting the Novavax vaccine.

• [195] At the hearing, Mr Orel confirmed that generally in the last few years of his employment, his average annual earnings were roughly $115,000 - $116,000 but they fluctuated because he was doing a lot of overtime extensions on his rostered four-week off, and adding extension on the ship that was going behind schedule. After his dismissal, Mr Orel earned roughly $30,000 - $40,000 less than when he was employed at DP World. At the time of the hearing, Mr Orel confirmed that he had not received any COVID-19 vaccination.

• [196] Mr Orel was cross-examined as to whether his objections to the Pfizer, Moderna and AstraZeneca vaccines were because those vaccines contain mRNA. In this regard, Mr Orel and Mr Crilly had the following exchange:

"That was part of it, and these - well, the fact that we didn't know what the future causes were going to come down - come down the line after taking it. So that was my biggest problem with it, and there was no - I even did a lot of research on it and I couldn't find any information on what would happen to me in two, three, four years time down the track, what sort of effect it would have on me, because it still was an experimental vaccine, even by the government's own standards. So I just thought, no, this isn't something I wanted to go on with. That's why I did a bit more research on the Novavax, which at the time was deemed protein-based like the flu vaccine. I thought that would be a better option."

Now, you've said part of your concern was the MRNA (indistinct) part of it was also the effect that you didn't know the long term safety issues from it?---That's right.

And you've referred to not knowing what would happen to you in two, three, four years. That's a concern that would apply to any new vaccine, isn't it?---Well, most vaccines from what I understand are trialled and tested over a number of years, not a couple of months and then introduced into the populous. And that way, you know, they can find out whether there's going to be any effect on any individuals. Most of the testing was done on healthy adults from what I understand. They weren't tested on individuals with underlying issues and things like that. So the information I was reading - and I couldn't even get any factual information from the company Pfizer or any of the other ones on whether the tests - or the results of the tests and things like that. So to be taking something which you don't know, can't get any information on, I think for me personally it wasn't the right choice for me." [169]

• [197] In relation to whether his concerns applied to the Novavax vaccine given that it was also a new vaccine, Mr Orel said that he did a lot of research on the Novavax vaccine, and he deemed that to be a better option as it is protein-based and similar to the flu shot.[170] In relation to his research, Mr Orel said that he did not consult his doctor but was looking at material from epidemiologists. When he was asked whether he read any peer-reviewed journals, he said:

"Yes, they were, and quite a few - ...there was a man online on YouTube which I watched quite a bit and he brings in a lot of government information, it's a lot of peer review information as well. So I tried to get information from all points. I believe there's misinformation on both sides. So I tried to get a general - a general overlook of all the information that's coming out."[171]

• [198] Further, while Mr Orel accepted that at the time when he was required to comply with the Mandate, the Novavax vaccine had not been approved and its availability was subject to approval and demonstration that it is safe for use, he said that because he considered that the Novavax vaccine to be safe, he wanted to give the Company that option and to discuss with the Company about using his long service leave, holidays and sick leave for the next 6 months to wait for the Novavax vaccine.[172] When cross-examined about whether DP World should have allowed Mr Orel to take up to six months of leave to wait for Novavax to be approved, he said:

"I think that would have been a fair thing because DP World implemented the mandate pretty much without, I feel, consulting with us. And I thought, well, fair enough, if they - it's the company's choice to bring that in, but that was something out of the blue. That wasn't something that was in our original agreement, so I thought it'd only be fair that the company should have given a little bit of slack, a bit of leeway on the - for me to be able to have my long-service leave, even though I know that at the time it's not - it wasn't the company's policy. You usually had to give 12 months in advance to take long-service leave. And that's what Ben Hanley was - said to me, he said, 'That's - it doesn't fit in with the company's policy, taking long service leave early.' And I thought, 'Well, you've implemented this mandate out of the blue, why can't you give a little bit of leeway with me taking long service leave?' It was - that way I wasn't going to be - I could - they were still going to retain my skills as a crane driver and foreman. I was going to take that long service leave at another date. It's something which I was - I figure I'm entitled to take. And it wasn't going to cost them any extra because those were benefits I was entitled to. So I just thought there was no leeway, there was no consultation. It was just this is it, that's what's going to happen, that's it."

• [199] In response to the proposition that DP World Brisbane still has a vaccination requirement, Mr Orel said that a good percentage of the workforce is not fully vaccinated because they have received only one or two doses and not a booster. In response to questions about the source of his understanding that full vaccination requires boosters, Mr Orel said that this is his impression from information coming from the government and health departments and he does not know if it is true.[173] In response to my question about how much long service leave he had accrued, Mr Orel said that he had work for DP World continuously for 24 years and had not taken any long service leave during that time.[174] In cross-examination, Mr Orel confirmed he has not had received a COVID-19 vaccination.[175]

• [200] Mr Wright commenced employment with P&O Ports in 1999 as a Stevedore. In approximately 2006, DP World acquired P&O Ports and Mr Wright continued his employment with DP World Brisbane until his dismissal on 17 November 2021[176] after 22 years of continuous employment. When Mr Wright made his witness statement, he was 49 years of age.[177] Mr Wright is a member of the MUA and was represented by the Union in these proceedings.

• [201] During his employment with P&O Ports, and subsequently, DP World Brisbane, Mr Wright worked as a full-time employee and completed all training required for Portainer Crane Operator, Foreman, Reach Stacker Operator, Forklift Operator and Straddle Driver. Prior to his dismissal, Mr Wright's main position was Portainer Crane Operator which was under the Grade 5 category of employment in the Brisbane Agreement. The main duty of a Portainer Crane Operator at DP World is to load and discharge containers and cargo on and off the ships. On any given shift Mr Wright would volunteer to be the MUA shift delegate.

• [202] Mr Wright received the Mandate announcement on 16 September 2021 notifying all employees of the introduction of the Mandate and the Brisbane information letter of 12 October from Mr Hanley notifying that he was required to provide DP World, by 29 October 2021, with either his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose. The letter also specified that he needed to get a second dose by 26 November 2021. On 26 October 2021, Mr Wright received the second Brisbane information letter by email from Mr Muscat stating that DP World had not received a response from Mr Wright and that any employee who did not provide vaccination evidence by 28 October 2021 would not be allocated any further work.

• [203] Mr Wright was one of the employees who took action in the Federal Court in relation to their dismissal. On 2 November 2021, Mr Wright received the Brisbane show cause letter from Mr Hanley requesting that he provide reasons as to why his employment should not be terminated for failing to comply with the vaccination requirements. In response, on 16 November 2021, Mr Wright sent an email in the following terms to Mr Muscat and Mr Hanley, which he described as expressing his hesitancy to be vaccinated and genuine concerns about the COVID-19 vaccine:

"I would like to offer you a compromise before you terminate me.

I would like to take long service leave until the new vaccine is on the market in December which is a short time away. It is called Novax (sic). I have studied it and it is a different technology to the current ones available.

I am not refusing to get the vaccine, I just don't think the 3 that are being offered by the company would work well with my body. Novax (sic) is a different technology.

This way you are not losing a skilled crane driver, who has been loyal to the company for over 22 years with minimal sick days and no record of misbehaviour."[178]

• [204] Mr Wright said that nobody from DP World responded to his request to take long service leave until the Novavax vaccine was approved by the Australian government. Rather, on 17 November 2021, Mr Wright received a letter from Mr Hanley notifying him that DP World was terminating his employment with immediate effect and that he would be paid any outstanding entitlements including five weeks' pay in lieu of notice. Mr Wright's termination letter rejected his proposal to wait for the Novavax vaccine. The termination letter also stated that this proposal did not meet the requirements set out to him or the directive of the Company and asserted that he had been offered an opportunity to "discuss this matter with us" and had provided a reply by email dated 16 November 2021.

• [205] In response, on 22 November 2021, Mr Wright emailed the company regarding his termination and his concerns about his health and DP World's approach to the Mandate. The email stated as follows:

I was employed at Australia's Brisbane Fisherman Island terminal for the past 22 years plus. My role there was a grade 5 Container crane driver/foreman. I loved my job with DP World.

Then Covid-19 came around and I worked all through the lockdowns until now when my employment has been terminated.

I have been threatened with many emails to go get the Experimental inoculation. I have felt bullied and coerced by the company and threatened with losing my job. Many other employees have been coerced into getting through threats of termination and being unable to support their family.

The company has promoted itself as a family orientated company with has proven to be false. The stress and pressure DP World has put myself and my family under has been unbelievable. Financial and mental pressures causing months of sleepless nights with suicidal thoughts.

This has nearly brought my marriage to an end. I find it incredible with all your bullying and harassment polices you could go down this road. I find DP World to be medically racist against me for my medical choice. They would not be able to discriminate against a person for multicultural reason or being disabled or gender. I ask how is this any different?

The TGA government website has a list of all the adverse reactions which include death. Where death is a possible reaction there should be choice.

There was no MSDS (Material Safety Data Sheets) on this product and no long-term testing done like with ever other vaccine. When the workshop gets a new chemical product in, it must come with an MSDS and Safety information.

None of this was supplied by the company for me to make an informed decision on what I was being asked to inject into my body to keep my job.

As you can imagine I'm quite concerned about my safety with this experimental drug.

If you could please look into the coercion and bullying behaviour behind senior management forcing workers to inject this product or be terminated when no other company on the Queensland wharf has, it would be appreciated.

Thank you for looking into this situation for me as I have now been terminated after 22 years of loyal service to the company.

Looking forward to your quick response."[179]

• [206] On 23 November 2021, Mr Hanley responded to his email as follows:

The Company's position and decision is as outlined in your termination letter of Wednesday 17 November 2021. The Company's position has been supported by commentary of the Federal Court of Australia in a matter you and others brought on and subsequently withdrew.

We do not intend on commenting on the contents of your email dated Monday 22 November 2021, other than to state:

• DP World Australia respectfully disagrees with the majority of matters you allege; and
• DP World Australia rejects any assertion that Management has been involved in coercive or bullying behaviour;

We respect your personal decision and wish you well in your future endeavours."[180]

• [207] Mr Wright said he was devastated to learn that DP World had terminated his employment. He was the main income earner for his family of three and had no idea how he was going to provide for them. On 21 November 2021, Mr Wright started employment at Carlton United Breweries (CUB) as a factory hand on a casual basis. The work was insecure, notices of shifts were often given at the last minute and it was an hour drive to and from home. Mr Wright ended his employment with CUB in August 2022 and then started employment in August 2022 at TML in Brisbane where he works as a casual Stevedore. Mr Wright said the work is insecure, he does not know his shifts from one day to the next and this work also took him away from his family, by requiring him to fly to Townsville to pick up extra shifts. Mr Wright said it made it very difficult to budget for his finances and plan his time.

• [208] Mr Wright has a mortgage and general bills that need to be paid. His base rate of pay is a flat rate of approximately $60 per hour. Since losing his job at DP World, Mr Wright and his family have struggled financially and emotionally worrying from payday to payday. Mr Wright's personal life has also been very stressful. In addition to his dismissal, Mr Wright has been navigating some difficult family circumstances. Mr Wright said that he very much wants to return to work at DP World for the stability of hours and constant roster certainty. DP World was where Mr Wright had envisioned working until his retirement. Mr Wright said his termination has thrown his world into disarray and turmoil after 22 years of being a loyal employee with an exemplary work record, minimal sick leave and high regard from his workmates and supervisors alike.

• [209] At the hearing, Mr Wright confirmed that generally in the last few years of his employment, his average annual earnings were roughly $115,000. Mr Wright tendered into evidence his pay advice from TML for the period between 5 June 2023 and 18 June 2023. It shows that the year to date salary amount was $86,628.84. In addition, he tendered into evidence an income statement which shows an income of $59,063 from his job at CUB via a recruitment agency.

• [210] Mr Wright was cross-examined about the basis for his statement that he did not think the three vaccines that were being offered by the Company would work well with his body. In response, Mr Wright gave evidence that he does not have a spleen to filter blood and he had heard a lot about blood clotting with the AstraZeneca vaccine. He said that he was worried about the vaccine going to his spleen and believed Novavax seemed to be "more of an old school technology" than AstraZeneca or Pfizer and would not travel through his body as much.[181] Mr Wright also gave evidence that he had discussed his concerns with his doctor, but the medical advice he received was to "go and get the vaccine".[182] Mr Wright confirmed that he was asking for time to receive the Novavax vaccine but did not know when that vaccine was approved. Mr Wright is not vaccinated and said that after he was dismissed, he saw no reason to be vaccinated because other companies he worked for were not mandating it.[183]

• [211] It was put to Mr Wright that his statement that no one from DP World responded to his request to take leave pending the availability of Novavax was incorrect and that the termination letter he received dealt with this issue and informed him that. Mr Wright responded that he was not sure whether this was the case.[184] In relation to remedy, Mr Wright confirmed that he is seeking reinstatement. Mr Wright was questioned about the email correspondence that he sent to the Company on 22 November 2021 which contained various accusations against the Company. Mr Wright does not deny that he made those accusations or blamed the Company for the difficulties and pressure that he had experienced but said that he had no hard feelings towards the Company and can work with Mr Hanley and others and that he has now moved on.

• [212] Mr Edwards commenced employment at DP World Brisbane on 17 March 2007. Prior to his dismissal on 17 November 2021, he had been employed by the Company for more than 14 years. Mr Edwards was employed as a Supplementary Stevedore up until 2008 when he became a Guaranteed Wage Earner. Mr Edwards was trained as Quay Crane operator in 2010 and was also upgraded to Variable Salary Employee. He was then promoted to Full-time Salary Employee on 23 August 2021, eleven weeks before his dismissal. Mr Edwards was employed under the Grade 2 category of the Agreement, but the majority of work he performed was a Grade 5 Crane Driver. Mr Edwards was 50 years of age when he made his Witness statement.[185] He is a member of the MUA and was represented by the Union in these proceedings.

• [213] On 16 September 2021, Mr Edwards received the Mandate announcement of DP World's decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Mr Edwards said he tried to talk to Mr Hanley and Mr Muscat on a number of occasions about some of the concerns he had with the vaccines, but they would only reply to him with DP World's policy and reiterated that if he wanted to remain employed with DP World then he would need to prove his vaccination status.

• [214] Mr Edwards was one of the employees who took action in the Federal Court in relation to their dismissal and the correspondence in relation to this matter sent on his behalf is extracted above under the heading "Common Correspondence" along with the response on behalf of DP World Brisbane to that correspondence.[186] On 17 November 2021, Mr Edwards sent an email to Mr Muscat and Mr Hanley. At the hearing, Mr Edwards confirmed that because of a typographical error in Mr Muscat's email address, that email was never received by Mr Muscat. The email was in the following terms:

"I would like to offer you a compromise before you terminate me.

I would like to take long service leave until the new vaccine is on the market towards the end of December which is a short time away. It's called Novavax. I have studied it and it is a different technology to the other ones currently available.

I'm not refusing to get the vaccine, I just think that the 3 that are currently on offer and approved by the TGA wouldn't work well in my body. The Novavax does not have the mRNA ingredient that the others have and this would be more suitable for me.

This way you are not loosing a skilled crane driver that has been loyal to the company for over 14 years with minimal sick days and no misbehaviour."[187]

• [215] Later that day, Mr Edwards received a letter of termination from Mr Hanley and Mr Edwards which did not respond to his proposal to take long service leave until the Novavax vaccine was available. Rather, the termination letter stated that DP World had not been provided with any further information about whether Mr Edwards intended to get vaccinated for COVID-19 and that it had been concluded that he had chosen not to comply for his own personal reasons. The termination letter also asserted that Mr Edwards had been offered an opportunity to discuss "this matter" with the Company and had not responded.[188] On termination of his employment, Mr Edwards was informed he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice. Following his dismissal by DP World, Mr Edwards was unemployed from 17 November until 7 March 2022 and this period of unemployment caused significant financial stress to him and his family. On 7 March 2022, he commenced employment with TML where he remains employed.

• [216] In relation to Mr Hanley's evidence that he denied speaking with Mr Edwards "on a number of occasions" regarding Mr Edwards' concerns about the vaccines, Mr Edwards said in his witness statement in reply[189] that he tried to catch Mr Hanley and Mr Muscat at the office on multiple occasions throughout October 2021, but they were never available to meet with him. Mr Edwards further recalls that in early October 2021, he spoke to Mr Hanley briefly as he walked past, raising his concerns regarding the vaccination mandate. He recalls Mr Hanley said words to the effect that the vaccine mandate was Company policy and to maintain his employment he would need to comply. After several unsuccessful attempts to meet with Mr Hanley and Mr Muscat, Mr Edwards considered calling them to discuss his concerns. In the end, he did not do so due to his worsening mental health in the face of the Mandate and the tenuous status of his employment.

• [217] In response to the proposition that his evidence of having conversations with Mr Hanley and Mr Muscat was not true, Mr Wright had the following exchange with Mr Crilly:

"And then you say in your reply statement, 'They were never available to meet with me', and you depose to one conversation where you talked to someone in the corridor, correct? ‑That's correct. When I spoke to Mr Hanley it was actually not a corridor, it was changing through to the foreman's room which is down the stair.

So it's not true, is it, that you had conversations with them and they simply regurgitated company policy to you, is it? ‑No, that's not correct. I had one little conversation with Ben Hanley as he was passing through the room to the foreman's room. And as to the other - me trying to contact Greg and Ben themselves I just went up to their offices to catch them, but they never were available and I believe that Greg was sick at the time."[190]

• [218] In cross-examination, Mr Edwards was questioned about the basis for his preference for the Novavax vaccine and his rejection of the other vaccines and whether it was because the other vaccines contained mRNA. Mr Edwards agreed that this was the case and said that it was based on his research on the internet and doctors' advice, with help from his wife who is a nurse. Mr Edwards did not accept that the AstraZeneca vaccine also does not contain an mRNA.

• [219] Mr Edwards said that he had spoken to colleagues about the wording of his email sent to Mr Hanley on 17 November, but the wording was not shared among those colleagues. Mr Edwards could not explain why the email was similarly worded to the emails sent by other employees. In response to the proposition that he could not have been surprised when he was dismissed as he had been informed that he would be dismissed if he did not comply with the Mandate and was not successful in the legal action in the Federal Court to stop his dismissal, Mr Edwards said that he was surprised that he was not consulted. Mr Edwards also said that the legal action was to stop termination of his employment to allow for consultation.[191]

• [220] In oral evidence, Mr Edwards confirmed that while he was working at DP World, his average annual earnings were roughly $125,000 - $140,000. On 7 March 2022, Mr Edwards commenced employment with TML in a permanent position. In this new role, Mr Edwards earns roughly $10,000 - $15,000 less annually, compared to his earnings at DP World and does not have a set roster.[192] In relation to remedy, Mr Edwards confirmed that he is seeking reinstatement. In response to my question as to whether he would be able to comply with the vaccination requirements given that the Mandate is still in effect at DP World, Mr Edwards said he has not been vaccinated and gave the following response:

"I'm asking you if you were reinstated would you comply with the mandate? --- I would definitely consider it.

You'd consider it? --- I would like to sit down and consult, yes.

Okay. So you would want to sit down and have a debate about it? --- Not a debate, just a discussion, and if it was required then, yes, I would definitely look at it, yes."[193]

• [221] Mr Troy Williams commenced employment with P&O Ports in September 1997, which eventually became DP World. Initially, Mr Troy Williams was employed as a Supplementary Stevedore and in or around 2001, he became a Full-time Salaried Employee. Prior to his dismissal on 3 January 2022, Mr Troy Williams was employed as a permanent Grade 5 Crane Driver - a position he held for nearly 26 years. He was also elected to the Employee Representative Committee (ERC). At the time Mr Troy Williams made his witness statement, he was 46 years of age.[194] Mr Troy Williams is a member of the MUA and was represented by the Union in these proceedings.

• [222] On 16 September 2021, Mr Troy Williams received the Mandate announcement of DP World's decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Mr Troy Williams said that the Mandate announcement stated that consultation shall "commence" and in this regard, Mr Troy Williams said that consultation should have been conducted well and truly before the Mandate was announced and the failure by DP World Brisbane to consult voided the Mandate "by default".

• [223] Mr Troy Williams received the Brisbane information letter dated 12 October 2021 from Mr Hanley notifying him that he was required to provide DP World, by 9 am on 28 October 2021, with either his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose. The letter also specified that employees were required to have the first dose by 29 October 2021 and a second dose by 26 November 2021.[195] On 13 October 2021, Mr Troy Williams received the second Brisbane information letter by email from Mr Muscat, attaching a document described by Mr Muscat as "Covid19 correspondence" being the first Brisbane information letter sent on 12 October 2021.[196] On 26 October 2021, Mr Troy Williams received another email from Mr Muscat stating that DP World had not received evidence of vaccination from Mr Troy Williams and that any employee who did not provide this evidence by 9am on 28 October 2021 would not be allocated any further work.[197] On 28 October 2021, Mr Troy Williams replied to Mr Muscat by email apologising for the delay in his response and stating that he was travelling with his family in remote Australia and did not have regular reception. In addition, Mr Troy Williams said:

"As I'm currently on approved LSL / AL leave and not due back on roster until early January and therefore can't be allocated, I have no need to apply for anymore approved leave (as referenced in your email).

I won't be returning home until early January so I will be in touch before my return to the workplace."[198]

• [224] On 1 November 2021, Mr Troy Williams received an email from Mr Muscat stating (salutations omitted):

The Company has reviewed your response below and understands that you have been away on leave, however you have not provided any information about whether you intend to get vaccinated nor why you have been unable to receive a vaccination since you were notified by the company regarding the mandated vaccination requirement earlier in 2021.

Based on the information you provided to date we are unable to exempt you beyond 5th November 2021. We are prepared to offer you however with an additional week of approved leave over and above the deadline of 29 October 2021 however DP World are not prepared to grant you continued leave from work past this time unless you comply with the directive.

You have not stated that you are objecting to being vaccinated, so I strongly urge you to obtain your vaccination and provide evidence of your vaccination by no later than COB Friday 5 November 2021. This is to be sent to [email] Should you not provide evidence by this due date, DP World will make a determination on regarding your ongoing employment.

To be clear you are not required to meet with us if you are unable to provide a written response for us to consider if you have elected not to be vaccinated.

Should you require further support, you are encouraged to access DP World Australia's Employee Assistance Program (EAP)."

• [225] After receiving Mr Muscat's email of 1 November 2021, Mr Johnston (Relief Official of the MUA Queensland Branch) corresponded with Mr Muscat on 1 November 2021 about Mr Muscat's email to Mr Troy Williams. The email exchange between Mr Muscat and Mr Johnston was appended to Mr Troy Williams' witness statement and Mr Johnston's email was in the following terms:

This appears to be a generic email and not specific to Troy.

As you are aware Troy has been on approved Long Service Leave for an extended period of time travelling the country, often in very remote regions with his family.

Therefore he does not need to apply for leave to cover himself for this week as he is already off until around mid-January.

Are you suggesting that you will cancel his leave and terminate his employment if he does not provide vaccination status by the 5th November?

Given his circumstances the directive to be vaccinated by the listed date is not reasonable, should not apply and he should be given an exemption until he is safe at home.

Troy has confirmed he will be in touch prior to his leave ending and his return to site in January.

Hope this clarifies the situation and Troy can be left to enjoy the rest of his journey without any threats of him losing his job and Dp World can wish him safe travels."[199]

• [226] In response, Mr Muscat sent an email stating: "Yes. This is specific to Troy. The requirement is to provide proof of vaccination prior to this Friday. The company is not prepared to wait until January. He has been given an extra week but had been given the same mandate notice as other employees. He just needs to provide that proof he is vaccinated.[200]

• [227] Also on 1 November 2021, Mr Evans (Assistant National Secretary of the MUA) had an email exchange with Mr Hulme (DP World's Chief Operating Officer - Terminals) about Mr Troy Williams. The emails were also appended to Mr Troy Williams' witness statement and in that exchange, Mr Evans said to Mr Hulme, "[this] is completely unreasonable. The bloke is on approved long service leave and away from home." In response, Mr Hulme said "[the] individual is being obstinate. If he is vaccinated, then he should have no problem sending his certificate through. It is not unreasonable for him to communicate with us as [an] employee. He seems to have no trouble communicating with the MUA Qld Branch."[201]

• [228] On 4 November 2021, Mr Troy Williams emailed Mr Muscat stating that the Company was well aware that he was travelling in remote locations in Australia and that he would follow the advice of health professionals and the government and would make an appointment with his GP upon his return to Brisbane at the end of his leave. Mr Troy Williams also stated that he would be in communication with Mr Muscat before his return to site with his "verification".

• [229] Later on the same day, Mr Troy Williams received an email from Mr Muscat stating the following (salutations omitted):

"Thanks for your response to the company's correspondence. The company has considered your response and as per last advice despite you being away on leave, there is no reason that you cannot receive a vaccination as with any other person within Australia and provide proof of your vaccination in accordance with the directive of the company. To date you have failed to indicate whether you intend on getting vaccinated and comply.

Based on the information you provided however we are unable to exempt you beyond 5th November 2021 and DP World are not prepared to grant you continued leave from work past this time unless you are able to comply with the directive.

I strongly urge you to obtain your vaccination and provide the evidence required of your vaccination by no later than 5pm Friday 5 November 2021 as per previous advice. This is to be sent to [email]. Should you not provide evidence by this due date, DP World will make a determination on regarding your ongoing employment after this date.

Should you require further support, you are encouraged to access DP World Australia's Employee Assistance Program (EAP)."[202]

• [230] In response to Mr Muscat's email, Mr Troy Williams further corresponded with Mr Muscat on 5 November 2021, stating:

"As I advised I will be waiting until I can sit with the family GP and have it administered in their clinic close to my home.

I understand it is a company directive but I fail to understand the exact issue given I am not on site and won't be for some time. Additionally, the granting of further leave is not necessary as I don't require anymore other than what I have already been approved for.

So I am clear are you going to cancel my approved leave and move to terminate me if I don't provide proof prior to today at 5pm? This is despite me posing no risk to anyone at DP World and committing to see my GP upon return to Brisbane."[203]

• [231] Later that same day, Mr Troy Williams received an email response from Mr Muscat. Relevantly, Mr Muscat informed Mr Troy Williams that the Company reconsidered his particular circumstances and advised as follows:

"We still remain concerned that the despite the information you have had whilst you have been away along with all the government and health advice relating to the pandemic, clearly you have chosen not to be vaccinated otherwise you would have provided that information to the company. Notwithstanding that, as you have been on long term approved leave for a substantive period and that leave commenced prior to the company directive, we will allow you to continue on that leave however, to be absolutely clear, you will need to be ready and able to return to work on your first shift back which I understand is on 3rd January. There will be no further leave provided either paid or unpaid past this date and if you are not double vaccinated ready to commence on that day, your employment will be terminated. We will not wait any further for you to see you doctor after this date. You need to resolve all this whilst you are on your current leave prior to your return and be ready to return double vaccinated. I trust you understand the company's position as there will be no further delays or exemptions provided in this regard."[204]

• [232] On 31 December 2021, Mr Troy Williams emailed Mr Muscat and Mr Hanley attaching a medical certificate dated 23 December 2021. It certified that Mr Troy Williams "has a medical condition and will be unfit for work from 23/12/2021 to 07/01/2022 inclusive". Later on the same day, Mr Troy Williams received an email from Mr Muscat stating, relevantly, as follows:

"The company has communicated with you now on several occasions outlining the company's mandate and requirement to be double vaccinated by 5 November 2021. This culminated in an email to you on 5 November 2021 outlining that we remained concerned that the despite the information you have been provided with whilst you have been away, along with all the government and health advice relating to the pandemic, clearly it appeared that you had chosen not to be vaccinated as you would have provided that information to the company.

The company however in good faith, as you had been on long term approved leave for a substantive period, allowed you to continue on that leave however, it was made absolutely clear to you in that correspondence that you were required to be double vaccinated ready to go back on to roster and provide proof to the company prior to that date. The company made it clear that there will be no further leave provided either paid or unpaid past this date if you were not double vaccinated and if not your employment would be terminated.

You email below does not indicate that you are double vaccinated, so if you have been double vaccinated then send this to the company. We can only assume from your email below that you are refusing to be vaccinated or you would have provided this to us. We will be writing further to you if you do not receive the certificate sent through prior to Monday."[205]

• [233] On 2 January 2022, Mr Troy Williams sent an email to Mr Muscat in the following terms (salutations omitted)

"You can assume or insinuate about my vaccination status but after consulting with my GP I've decided that in conjunction with the privacy act of 1988 that I wish to keep my private medical information private and that you need to consider the following;

DP World is requesting that myself, Troy Williams, disclose my private medical information in the presence of my peers, and produce certain medical documentation including:

− medical records relating to a completed COVID-19 vaccination,

− a medical certificate from a medical practitioner,

− a copy of the individuals immunization history statement, or

My understanding is that this is in breach of an individual's right to privacy under the Privacy Act 1988.

Additionally under section 51 (xxiiiA) of the Constitution, the doctor patient relationship is a contract in law between 2 individuals and therefore voluntary in law, Breen v Williams HCA 1996 BRENNAN CJ The doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care, no third party can exist.

Therefore, I would like to keep my medical information private as this is my lawful right.

I am unaware of any such employment contract that shows an agreement whereby I must disclose my Covid 19 Vaccine status / personal medical information.

I understand that businesses have a duty of care to their employees and visitors and the businesses role is to ensure people are meeting their obligations, particularly in relation to health and safety, discrimination and lawful conduct. So I would like to ask how you will support me lawfully, without discrimination, to continue my employment whilst respecting my lawful right to medical privacy?"

• [234] On 4 January 2022, Mr Troy Williams received an email from Mr Muscat attaching a letter dated 3 January 2022 from Mr Hanley. By this letter, Mr Troy Williams was informed that his employment was terminated by DP World effective 3 January 2022. The termination letter stated as follows:

Acknowledge receipt of your medical certificate that was emailed on 31 December 2021 stating you are unfit for work from 23 December 2021 - 07 January 2022 and your email dated 3 January 2022.

As you are aware, you were required to provide confirmation of your vaccination status by 5pm Friday 5th November 2021 to comply with the vaccination mandate.

I refer to the letter that was sent to you on 2nd November 2021. In that correspondence I requested that you provide reasons why you should not be terminated for failing to comply with the vaccination requirements for employment in DP World.

You provided a response dated 5 November 2021 requesting that you be allowed to wait until your return from leave on Monday 3 January 2022. The company provided you this extra time in good faith and in the communication stipulated that you were required to show evidence of full vaccination prior to returning to work on Monday 3 January 2022.

To date, we have not received confirmation from you that you are vaccinated, and you have communicated to the Company in writing that you are not willing to provide that confirmation of vaccination. We have made multiple requests now that you comply with the directive, but you have chosen not to comply for your own personal reasons.

After considering your position, your stated intention that you would not comply with our request, it is clear that you remain unwilling to make yourself ready willing and able to work. This is untenable and your conduct is inconsistent with an ongoing employment relationship.

On this basis DP World has made a decision to terminate your employment from Monday 3 January 2022. You will be paid any outstanding entitlements including 5 weeks' pay in lieu of notice..."

• [235] Mr Troy Williams said that he had been a "solid and loyal employee" of DP World for 25 years and had an excellent relationship with the entire DP World workforce, including managers, supervisors and all the on-the-job workers with whom he had shared much of his adult life. Mr Troy Williams said he felt enormous pressure to get vaccinated whilst having "the trip of a lifetime" on long service leave travelling the country with his family, and all the while he posed no threat to anyone back at work. In Mr Troy Williams' view, DP World did not fulfil its legal and ethical obligations by consulting its workforce and, importantly, the HSRs and HSR committee.

• [236] Mr Troy Williams expressed the view that the Pfizer vaccine, in particular, was never tested to determine whether it prevented transmission, which Mr Troy Williams said was the whole and sole reason to justify implementing a mandatory vaccination policy. In his view, the vaccine did nothing to prevent people from catching or spreading COVID-19. He said that he felt pressured or "gaslit" to declare his vaccination status while he was on paid leave, and often had no phone reception in remote locations. On occasion, Mr Troy Williams would check in with HSRs and colleagues to ask about how the consultation process was conducted regarding the introduction of the mandate, only to learn that there never was any consultation prior to the Mandate announcement issued by Mr Adams on 16 September 2021. Mr Troy Williams said that from that moment, he was confident that DP World's vaccination policy was "illegal and unjust".

• [237] Mr Troy Williams also expressed the view that while one of the other major reasons justifying a mandate was to keep Australia's supply chain moving, no other major stevedoring company made the decision to introduce a vaccine mandate and Australia's supply chain "managed just fine". This, and the fact that the vaccine does nothing to stop transmission, proves that there was no reason for the mandate to be implemented at DP World. Further, Mr Troy Williams stated that no one was offered the individual opportunity to sit down, meet and discuss with DP World management any potential alternative arrangement as other industries had, such as teachers and nurses who, unlike stevedores, actually work with the public.

• [238] Mr Troy Williams stated that there were other options, such as, taking paid or unpaid leave that many employees had accrued until the rules around the pandemic changed. He said he was threatened with termination whilst being on long service leave and posing no threat to anyone, and ironically, when he was terminated on 3 January 2022, he was on sick leave recovering from COVID-19 with a medical certificate until 7 January 2022.[206]

• [239] In Mr Troy Williams' view, the fact that DP World never consulted its workforce should void its current vaccine mandate altogether, and DP World should be forced to go back and consult properly as they should have done in the first place. Mr Troy Williams believes that he should be reinstated immediately and the leave entitlements that he would have accrued in the intervening period after his dismissal, restored.

• [240] In response to Mr Hanley's statement that it is inappropriate to reinstate the Applicants, including Mr Troy Williams, because they displayed a clear disregard for the Mandate and the directions of DP World which were informed by government guidelines during a pandemic,[207] Mr Troy Williams said in his witness statement in reply that he disagrees with Mr Hanley and believes that he should be reinstated. In support of this, Mr Troy Williams said that on 1 June 2021, he conducted a SEEK search and the results showed that recruitment of casual stevedores by DP World at the Port of Brisbane was ongoing indicating that multiple vacancies could immediately and easily be filled with experienced and dedicated workers. Mr Troy Williams said he does not believe his expectation of reinstatement is unreasonable and referred to an email sent by Mr Muscat on 22 October 2021 to a person named Carlo stating that "I respect your position... on this matter. You are a good employee...What you should do is write me a nice resignation... thanking DPW and so on, as you never know there may be other opportunities when all this stuff settles down...".[208] In Mr Troy Williams' view, the only barrier to his reinstatement is that the vaccine mandate is still being enforced by DP World and to his knowledge no other stevedoring company continues to enforce a vaccine mandate.

• [241] At the hearing, Mr Troy Williams gave evidence that following his termination by DP World on 3 January 2022, he remained unemployed until 7 March 2022 when he commenced employment with TML. In terms of his earnings, Mr Troy Williams said that there was not much difference between his earnings at DP World and at TML, but he was employed under "far inferior" conditions at TML. When asked what he meant by "inferior conditions", Mr Troy Williams said that at DP World where he had been for 25 years, he had worked his way up the ranks and was working an 8-hour shifts roster, whereas now he is doing 12-hour shifts that are irregular and predominantly night work.

• [242] In response to questions about whether the vacancies he searched on SEEK were for supplementary, non-rostered entry-level roles, he said "correct" and confirmed they were not roles for Full-time Salaried Employees.[209] In re-examination, Mr Troy Williams also said that he was aware that the Company had recently hired 10 stevedores and expected to hire 30 more in the coming weeks and he obtained this information from friends who are trainers on site at DP World.[210] In relation to remedy, Mr Troy Williams confirmed that he is seeking reinstatement. In response to a question as to whether he was aware that the Mandate was still in effect at DP World, Mr Troy Williams said:

"Yes, I do and I'm aware that they haven't enforced a booster, which would indicate that unless you have enforced boosters you may not be vaccinated."[211]

• [243] I asked Mr Troy Williams whether it was his proposition that if he were reinstated, he did not need to comply with the Mandate because no other employees have had a booster, Mr Troy Williams answered: "Well, basically, yes"[212] and "I'm refusing to divulge my private medical information"[213]. Mr Troy Williams said that he would only change his mind if proper consultation had taken place, and he was persuaded by the consultation that it was in his best interests to divulge that information.[214]

• [244] I put the following proposition to Mr Troy Williams: assuming that the Company had undertaken proper consultation, encouraged the employees to seek their own medical advice, directed employees to information on the ATAGI and the TGA websites, and based on that information, informed the employees that the Company's position was that it was irrelevant that the vaccines were only provisionally approved, and the vaccines were safe for use and were not experimental, whether his position would have changed. Mr Troy Williams said that consultation did not happen and "to me, it's like speculating about this, that and the other". He went on to say that he would argue DP World's policy was "null and void because they never consulted".[215] Mr Crilly asked Mr Troy Williams whether it would be a fair assumption that he would not answer if he was currently vaccinated, and Mr Troy Williams confirmed that that assumption was correct.[216]

• [245] Prior to his dismissal on 25 October 2021, Mr Taylor had been employed by DP World on and off for more than 12 years starting originally with P&O Ports in the early 2000s. Mr Taylor commenced what he described as his third stint working for DP World in 2017 and said that he would have happily worked for DP World for another 15 or so years until his retirement and still would if given the opportunity. At the time Mr Taylor made his witness statement, he was 51 years of age.[217] Mr Taylor was previously a Union member but represented himself in these proceedings.

• [246] On 16 September 021, Mr Taylor received the Mandate announcement that the Company had decided to make COVID-19 vaccination for all employees and contractors a condition of engagement. Subsequently, Mr Taylor received the Brisbane information letter of 12 October 2021 from Mr Hanley, notifying that he was required to provide DP World with either his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose.

• [247] On 18 October 021, Mr Taylor emailed the Company indicating that he held genuine concerns about the COVID-19 vaccine and expressing his hesitancy to get vaccinated. A copy of the email was not appended to Mr Taylor's witness statement, but he stated that the email was in the following terms:

"I am writing in response to your email regarding vaccination mandate dated 12th Oct.

I have been employed by DP world since 2017 and during that time I have always fulfilled my duties and upheld my contract of employment. This is a difficult period of time for everyone and particularly for myself. Personally the decision by DP World to bring in a "vaccine" mandate has caused me much stress. It has also caused workplace bullying and division, which is totally unnecessary in our work place.

I believe it's a personal health decision that shouldn't be made by anyone other than the individual. If it's something that an individual chooses that's their right, but the choice should be made in accordance with the Australian Governments own guidelines which state it must be given voluntarily in the absence of undue pressure, coercion or manipulation. I would like to have that choice myself and not be coerced or manipulated by DP Worlds policy and the threat of termination if I don't get vaccinated.

I have worked the entire "pandemic" at DP World with no issues in regards to Covid-19, safe work practices and I have fulfilled my role as a Stevedore during this time as per normal. To now be told I'm unable to perform my duties at DP World, almost 2yrs later from the start of the "pandemic" makes very little sense to me.

The reasons for not terminating my employment, I've always been a loyal hardworking employee, never had disciplinary issues, still willing to work and don't want to be terminated. I hope that there can be an outcome that means I can continue working for DP World.

I would also like to be given access to the accrued leave I have, including long service, sick and annual leave. In time I believe this situation can be resolved."

• [248] Mr Taylor was one of the employees who took action in the Federal Court in relation to their dismissal and the correspondence on his behalf is extracted above under the heading "Common Correspondence". By letter dated 17 November 2021 from Mr Hanley, Mr Taylor was informed that his employment with DP World was terminated with immediate effect on the grounds that he had failed to comply with the vaccination requirements. Mr Taylor was informed that he would be paid any outstanding entitlements including 5 weeks' pay in lieu of notice.[218] The termination letter sent to Mr Taylor did not refer to his application to take leave and asserted that he had not provided further information about whether he intended to get vaccinated since the deadline for vaccination expired. The letter also asserted that Mr Taylor had been offered an opportunity to discuss "this matter" but the Company had not received a response from him.

• [249] Mr Taylor said that he was devastated to learn that DP World had terminated his employment. He is the sole income earner in his family of four and he had no idea how he was going to provide for his family. Mr Taylor said that in 2022, he left his casual employment in this industry as the sporadic nature of the industry was sending him backwards. He said he has been consistently earning less since his dismissal by DP World and has had fortnights where he did not earn enough to cover his basic living expenses and finds himself going backwards fast and struggling financially. Mr Taylor has a mortgage and general bills that need to be paid and he estimated that his average income is around $1,190 per week. Mr Taylor also said that his personal life has also been very stressful. At the start of 2023, Mr Taylor suddenly lost his father to myocarditis and in addition to his dismissal, he has been dealing with his partner who was "adversely affected" by the vaccine.

• [250] In his oral evidence in chief at the hearing, Mr Taylor confirmed that his decision not to be vaccinated was based solely on the adverse effects the vaccine had on his partner.[219] He also gave evidence that he has a son with special needs who is reliant on him for the rest of his life. Mr Taylor said that as the breadwinner of his family, it was his decision that it was not worth the risk to be vaccinated, because of his son.[220] When asked whether he had told the Company about his circumstances, Mr Taylor said he had "spoken with Mr Hanley but he was very unclear about a lot of the stuff around that, with the mandate stuff in general, so he couldn't really give me any clarity. I was informed that any exemptions were going to be solely looked at by an individual panel that DP World would engage, so I found it pretty fruitless to try and get any sort of exemption at the time".[221] Mr Taylor was also asked whether he had told the Company about losing his father and the adverse effect his partner experienced and in response he said that he lost his father at the beginning of 2023 and the circumstances relating to his partner occurred after his dismissal.

• [251] After his dismissal, Mr Taylor was unemployed for "a couple of months and then [he] was alternating between three different jobs to try and make ends meet".[222] Mr Taylor also said that while he was working at DP World, his average annual salary was roughly $125,000 - $130,000. Mr Taylor has worked for a construction company earning around $80,000 before changing to his current employment as an educator which is a permanent role. He said he was currently earning about $100,000. Mr Taylor confirmed that he is still seeking reinstatement to his employment with DP World Brisbane and when asked whether he would be able to comply with the requirements of the Mandate, said if he had some discussions with his doctor and there was some consultation, it is a possibility.

• [252] It was put to Mr Taylor in cross-examination that he decided not to be vaccinated knowing about the Mandate, in response to which Mr Taylor said:

"In a way I wouldn't say I made a decision. The decision was sort of - there was no discussion around it. There was no consultation even to talk about any personal one on one with HR, with the manager, to actually have any discussions around what your thoughts were, what the company's thoughts were. Is there a way that we could work through it together as a group? It was just the high road or nothing. And that's the way it transpired."[223]

• [253] Mr Taylor also aid at the hearing that the proposition that a person needs to be vaccinated to be on site at DP World is untrue. In this regard, he said he was on the DP World site on around 18 November 2022 and DP World security did not ask him about his vaccination status. Mr Taylor also said that he took a photo on 18 November 2022 of himself on the DP World site. Mr Taylor, did not produce this photo or tender it into evidence.[224]

• [254] Mr Nemeth commenced employment with DP World Brisbane in 2018. When Mr Nemeth was first employed at DP World Brisbane, he was employed as a Supplementary (casual) Stevedore and at that time there was little work available, so his annual income was only around $25,000. Despite being on-call 24/7, Mr Nemeth had to take on two additional jobs to make ends meet, and finding other work was challenging because he had to inform potential employers that he might not be able to show up the next day due to the possibility of a call-in or a rostered shift from DP World Brisbane. Mr Nemeth said that many times he had to work night shifts after working all day in construction just to keep his job with DP World Brisbane. Nevertheless, Mr Nemeth said he remained dedicated to DP World Brisbane and maintained this routine for two years until he was finally offered a position as a variable salary employee (VSE), 7 months before his dismissal. Prior to his dismissal, Mr Nemeth was employed as a Grade 4 Stevedore. At the time Mr Nemeth made his witness statement, he was 47 years of age.[225] Mr Nemeth has been a member of the MUA but represented himself in these proceedings.

• [255] Mr Nemeth received the Mandate announcement of 16 September 2021 notifying that the Company had made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Subsequently, Mr Nemeth received the Brisbane information letter of 12 October 2021 from Mr Hanley advising that he was required to provide DP World with either his full vaccination certificate or a certificate demonstrating that he had received one dose of vaccination and a booking for a second dose.

• [256] Mr Nemeth said that while several employees wrote to the Company on 18 October 2021 expressing their concerns about the COVID-19 vaccine and hesitancy to get vaccinated, he personally did not respond to the Brisbane information letter. Rather, Mr Nemeth joined a group of DP World Brisbane employees in a legal action in the Federal Court against DP World in relation to the Mandate. Mr Nemeth said he was directed by his lawyer not to communicate with anyone from the Company while the case was ongoing.

• [257] As set out above under the heading "Common Correspondence" a letter on behalf of Mr Nemeth was sent by Green & Associates responding to the Brisbane information letter on behalf of Mr Nemeth and other Brisbane Applicants.[226] On 19 October 2021, prior to Green & Associates sending the letter of 28 October 2021, Mr Nemeth received a show cause letter and a termination letter which he did not tender. There is confusion in relation to Mr Nemeth's evidence about these letters given he stated that they were sent by Mr Eadie, when the letters were sent by Mr Hanley. It appears that Mr Nemeth used a witness statement prepared for a Sydney Applicant as a template. Mr Nemeth did not give evidence about whether he applied for leave as an alternative to being dismissed. Other than the issue about whether Mr Nemeth applied for leave, about which I cannot make a conclusion, I assume that the correspondence received by Mr Nemeth was in the same terms as other Brisbane Applicants.

• [258] At the hearing, Mr Nemeth said that while he was working at DP World, his average annual salary was over $100,000. After his dismissal, Mr Nemeth was unemployed for a couple of weeks before returning to his old profession as a tiler. As a tiler, the work was irregular so some weeks he would earn $700 per week and other times, no more than $1,100. Mr Nemeth then found a casual full-time job through a labour hire company working with freight trains as a shunter. Mr Nemeth is still in that role. He said that as a shunter, he earns about the same as he did as a tiler, about $74,000 per year.

• [259] Mr Nemeth also said that he had not written to the Company in relation to his concerns or circumstances because it was made clear that there would be no relaxation around the vaccination Mandate. In relation to remedy, Mr Nemeth stated that he is seeking "something" whether that be reinstatement or compensation.[227] In relation to reinstatement, Mr Nemeth was asked by Mr Crilly whether he was currently vaccinated and indicated his wish not to answer that question. I informed Mr Nemeth that whether he wished to answer the question is a matter for him. However, given that the Mandate is still in effect at DP World, I explained that the Commission can take into consideration whether he would be compliant with the Mandate in determining whether reinstatement is appropriate, and if he did not answer the question, it may be open to the Company to argue that he would not be able to comply. In response, Mr Nemeth declined to answer,[228] and I did not direct him to do so.

• [260] Mr Eadie is the General Manager Operation for DP World Sydney and gave evidence in relation to the dismissals of the Sydney Applicants.[229] With respect to the process followed by DP World Sydney in terminating the employment of the Sydney Applicants for failing to comply with the Mandate, Mr Eadie continued to rely on his witness statements filed in the initial hearing in relation to valid reason.[230] Mr Eadie said that on 19 October 2021, he caused letters to be sent to each of the Sydney Applicants inviting them to "show cause" as to why their employment should not be terminated. Mr Eadie said that he directed employees to "show cause" because DP World Sydney had adopted the Mandate, following a risk assessment and consultation process. Mr Eadie said that the Applicants had not provided evidence to DP World Sydney of their vaccination status and/or they had indicated that they were not and would not be vaccinated. Mr Eadie also said that at no time did any Applicant provide to DP World Sydney the required evidence that they were medically exempt.

• [261] On 25 October 2021, Mr Eadie caused letters to be sent to each of the Sydney Applicants (except for Mr William Grace) terminating their employment. Mr Eadie said that Mr Grace's employment was terminated by letter of 2 November 2021 because Mr Grace had requested a face-to-face meeting on 26 October 2021 to discuss his situation, and despite being granted a further period in which to comply with the Mandate, Mr Grace did not provide any evidence of his vaccination status.

• [262] Mr Eadie said he took the decision to dismiss any employee very seriously and before reaching the decision, considered all the facts and circumstances, responses provided by the employees and the impact that dismissal may have on them. Mr Eadie said he also considered whether there was any option other than dismissal. Mr Eadie stated that he made the decision to terminate the employment of the Sydney Applicants for the following reasons:

• DP World Sydney had experienced first-hand the significant impact that COVID-19 can have on the workplace and the risks associated with COVID-19 outbreaks in the workplace;
• Sydney was in the midst of a significant outbreak of the Delta variant of COVID-19;
• the Sydney Applicants failed to comply with the vaccination Mandate in that they failed to provide evidence of their vaccination status by the relevant dates, despite each of the Sydney Applicants being given multiple opportunities to provide this information;
• a number of Applicants provided the same pro forma email to Mr Eadie on 3 October 2021 outlining that they chose not to be vaccinated - Mr Lewis, Mr Tosh, Ms Richards, Mr Danny Tanielu and Mr Pintley - which Mr Eadie described as a statement outlining their concerns about the COVID-19 vaccines, but containing information commonly found on anti-vaccine websites rather than evidence of a medical exemption from receiving a COVID-19 vaccine, as required by the Mandate.
• while Mr Eadie considered this information and the views of those Sydney Applicants, it did not displace the requirements of the Mandate or the risks identified in the risk assessment, it did not form evidence of a medical exemption request, and he did not consider that the matters raised in it provided any proper reason for DP World Sydney to reconsider the Mandate, with much of the email, in Mr Eadie's view, being "conspiracy thinking".
• the Sydney Applicants who sought to rely on a medical exemption did not provide the required level of evidence, being a completed Australian Immunisation Register immunisation medical exemption (IM011) Form that was valid under ATAGI guidelines.

• [263] In relation to Ms Richards, Mr Puhipuhi, Mr Heath, Mr Parrott, Mr Danny Tanielu, Mr Severino, Mr Tosh, Mr Kitiona Tanielu, Mr Ryan Williams, Mr Kinnear, Mr Jones and Mr Lovas, Mr Eadie made reference to his evidence given in the initial hearing. That evidence was that the majority of responses to the show cause letters, in Mr Eadie's view, contained varying degrees of "anti-vaccination sentiment" and were otherwise irrelevant to the employees' compliance with the Mandate. Mr Eadie said that he considered all the responses he had received from the Sydney Applicants as part of the show cause process. However, given the matters raised in those responses, Mr Eadie did not consider that they warranted detailed responses as they did not raise any new matters. Examples of this material provided by Mr Eadie were a "COVID-19 Vaccine Declination Form" from Mr Puhipuhi in response to show cause letter sent to him and the email from Mr Tosh set out above.

• [264] Mr Eadie also noted that Mr Grujevski, Mr Parrott and Mr Kinnear did not respond to the show cause letters. He said that given the Sydney Applicants had not provided any evidence of being vaccinated (or provided evidence of a medical contraindication), show cause meetings were not offered to them as they were in the middle of the Delta outbreak. However, Mr Eadie said he spoke with a number of employees over the phone and via video conference, for example, Mr Grace and Mr Mosca.

• [265] In relation to Mr Severino's evidence[231], Mr Eadie said that Mr Severino had asked to be given the opportunity to wait for the Novavax vaccine to be approved by the Therapeutic Goods Administration (TGA). In this regard, Mr Eadie noted that as of 25 October 2021 (when the employment of Mr Severino was terminated), Novavax had not been provisionally approved by the TGA and there was no indication when (and if) it would be. He said that DP World Sydney was not prepared to place employees on indefinite periods of leave or allow employee compliance with the Mandate to be subject to the uncertain approval of a vaccine. For completeness, Novavax was not provisionally approved until 19 January 2022, some three months after the termination of Mr Severino's employment.

• [266] Mr Eadie had a call with Mr Mosca[232] on 25 October 2021, during which Mr Mosca advised that he was unable to get an appointment with his specialist to confirm his medical contraindication. Mr Mosca was asked why he did not ask his GP for a contraindication certificate and his response was that his GP did not have his history as the "test" was undertaken in 2014. Based on Mr Mosca's responses, Mr Eadie said he was not satisfied that Mr Mosca had made an effort to obtain a medical contraindication certificate and therefore had not made an effort to comply with the Mandate. Mr Eadie denied that he did not respond to Mr Mosca's apprehensions.

• [267] As to the evidence that Mr Mosca and Mr Pintley were on workers' compensation at the time and not attending the workplace, Mr Eadie said that employees who were on workers' compensation were still required to comply with the Mandate, consistent with all other employees, as they needed to be ready and able to attend work once they were cleared to return to work.

• [268] Mr Eadie said that Mr Lovas had indicated, in response to the show cause letter, that he had seen multiple medical practitioners and they had not provided him with a medical contraindication certificate. Mr Eadie further noted that Mr Lovas has not confirmed in his statement that he had been able to obtain a medical contraindication certificate and has not confirmed that he is currently vaccinated.

• [269] In relation to Mr Lewis, Mr Eadie said that on 3 October 2021 at 4:00 pm, he received an email from Mr Lewis setting out his response to the Mandate. The response contained various anti-vaccination statements and set out the reasons why Mr Lewis believed the COVID-19 vaccinations to be unsafe. On 19 October 2021 at 11:48 am, Mr Eadie caused a show cause letter to be sent to Mr Lewis as Mr Lewis had not provided evidence of having received two doses of a COVID-19 vaccination. The show cause letter required Mr Lewis to respond to the proposed termination of his employment by 5:00 pm on 22 October 2021.

• [270] On 22 October 2021 at 2:27 pm, Mr Eadie received an email from Mr Lewis in which he advised that he needed additional time to be vaccinated. At the time of receiving the email from Mr Lewis, Mr Eadie said that more than 30 days had passed since he had been notified of DP World Sydney's vaccination requirements and the relevant dates for compliance. Mr Eadie noted that at no point prior to 22 October 2021 did Mr Lewis indicate to him that he required additional time to be vaccinated or that he had already received the first dose of a COVID-19 vaccination. The only correspondence received from Mr Lewis was his response on 3 October 2021 which set out his vaccination hesitancy. Accordingly, Mr Eadie's view was that Mr Lewis had not complied with the vaccine mandate and it appeared to him that he had no intention of doing so. On that basis, on 25 October 2021, Mr Eadie caused a termination letter to be sent to Mr Lewis.

• [271] Under cross-examination, Mr Eadie accepted that he did not respond to Mr Lewis:

"All right. And he explicitly asked you to respond to him as soon as possible for extra time to complete the next stage, right?---Well, he asked for a response, yes. Yes.

Yes. And you didn't respond to him, did you?---Not at that point, no.

Yes. Had you picked up the phone and said, 'Hey Scott, do you intend to get vaccinated or not?' you would have discovered that, in fact, he had received his first dose, wouldn't you have?---Potentially."[233]

• [272] Mr Eadie rejected the proposition that any employee who was not vaccinated by the deadline was assumed to have refused to comply with the Mandate and as such, Mr Eadie did not bother to talk to them. Mr Eadie said he spoke to several employees but accepted he did not speak with Mr Lewis.[234] Mr Lewis' dismissal took effect on 25 October 2021. On 25 November 2021, Mr Eadie received a call from Mr Lewis. In that call, Mr Eadie recounted that Mr Lewis advised that he was fully vaccinated and requested to be reinstated to his former position. Following the call, Mr Eadie received a text message from Mr Lewis with a copy of his COVID-19 digital vaccination certificate. However, Mr Eadie said he was unable to locate a copy of this message.

• [273] On 3 December 2021, Mr Eadie caused a letter to be sent to Mr Lewis stating, among other things, that after considering the information provided by Mr Lewis, DP World invited Mr Lewis to provide reasons of his intention and the outcome he was seeking, by 5:00pm Wednesday, 8 December 2021. On 5 December 2021 at 2:34 pm, Mr Eadie received an email response from Mr Lewis stating that he had received the first dose of vaccination on 21 October 2021. Further, the email noted that Mr Lewis was seeking advice from his family health practitioner in relation to receiving the second dose of vaccination after suffering side effects from the first dose. Following that advice, Mr Lewis said he received the second dose on 19 November 2021.

• [274] Based on Mr Lewis' response and his conduct to date, Mr Eadie said he determined not to reinstate Mr Lewis for the following reasons: Mr Lewis had received his first dose of a COVID-19 vaccination on 21 October 2021 but did not inform DP World Sydney of this in his email of 22 October 2021; he did not provide a reasonable explanation as to why this had been the case; and Mr Lewis had waited 5 weeks since his dismissal to advise DP World Sydney that he was in fact vaccinated. Accordingly, on 15 December 2021, Mr Eadie caused a letter to be sent to Mr Lewis advising him that he had determined not to reinstate him.

• [275] Mr Eadie also gave evidence that he engaged in an exchange of email correspondence with Mr Dunn in which Mr Dunn sought that Mr Lewis be reinstated. That correspondence tendered in a bundle by Mr Eadie[235], commenced with an email sent by Mr Lewis to Mr Dunn, setting out Mr Lewis' version of events with respect to his discussions with Mr Eadie in relation to an attempt to return to work following the termination of his employment. In that email, Mr Lewis states that he had been corresponding with Mr Eadie and DP World Sydney HR about the "reversal" of his dismissal and had informed Mr Eadie on 26 November 2021 that he was vaccinated and wished to return to work and that he could do so immediately.

• [276] Mr Dunn sent an email to Mr Eadie on 20 January 2022, forwarding Mr Lewis' email and stating:

"I understand we are going to chat about Scott however, after reading some of Scott Lewis details he is guilty of being a dill and unspecific in his communication on paper however has had a couple of calls with you too. In short he was 6 days late for first jab and 3 days late for second jab when compared to the policy. He confirmed his double vaccination on Nov 30 approx 2 weeks post policy although had written requested some further time. If this was all about vaccination not termination as you say how is this poor bloke terminated. It seems at the time he confirmed his vaccination status any backfilling would have been merely at advertise stage or interview at best - easily reversable. Why was he not re employed as the others who confirmed status after the initial FWC discussions with Tory present. By rights he should of beaten the Hardies back. When Tory asked if there were any others DPW at least (if not the MUA) were aware of Scott's status and desire to return. This should be fixed for both sides, he is a good tradesman and DPW are about to waste significant money on him to not be at work.

Look forward a sensible conclusion on this matter."

• [277] In response, Mr Eadie sent an email to Mr Dunn on 20 January 2022 as follows:

"Will call you shortly, but the below doesn't quite tell the whole story. Employees were asked to confirm their vaccination status on the 15th October, and then were given another opportunity or to show cause on the 19th. Scott responded on the 22nd, yet did not in any way confirm he was vaccinated despite that apparently being the case. We had no indication he was vaccinated until some 5 weeks later on 25th November and didn't supply evidence until the 30th.

By contrast, the Hardies let us know they were vaccinated in the last week of October and were reemployed some 2 weeks before Scott had even told us he was vaccinated. Scott was also not mentioned in any of the correspondence that I can see between Adrian and Tory in regard to reemployment - the Hardies were. With regards to recruitment, the interview process was complete and the applicant decided before we had any contact from Scott."

• [278] Mr Eadie also said that between 24 January 2022 and 15 February 2022, he had several conversations with Mr Dunn to negotiate Mr Lewis' return to work as a VSE. According to Mr Eadie, after 15 February 2022, Mr Dunn ceased negotiating Mr Lewis' reinstatement and Mr Eadie did not hear anything further from the MUA about this until May 2022. On 6 May 2022 at 12:00 pm, Mr Eadie received an email from Mr Dunn enquiring about a vacancy for an electrician and suggesting Mr Lewis as a suitable candidate. Mr Dunn stated in that email that it may be mutually beneficial and the filling of the role would be fast tracked by avoiding a long advertising, interview and selection phase. The email concluded with Mr Dunn stating that if this was an option, he would be happy to discuss the matter and proposed terms.

• [279] On 9 May 2022 at 8:16 am, Mr Eadie responded to Mr Dunn and advised him that the intention was to fill the vacancy in accordance with the Sydney Agreement. On 16 May 2022 at 2:35 pm, Mr Dunn wrote to Mr Eadie expressing his disappointment with the situation at what he termed "a somewhat spiteful decision which prevents a mutually beneficial outcome" and noting that Mr Lewis had been vaccinated for "a long time now". Later that day at 4:57 pm, Mr Eadie responded to Mr Dunn's email as follows (salutations omitted):

"With respect, you are omitting a couple of pertinent facts in relation to this matter:

1. Scott allowed his termination to proceed following multiple opportunities to confirm his status and despite being fully vaccinated, and then made no attempt to raise or rectify the situation for 5 weeks.

2. You and I engaged in extensive discussions and were on the verge of agreement regarding his recommencement, however you abruptly ceased to respond on the 15th February, more than 3 months ago.

To now express disappointment that we don't "fast-track" him back to a position that was effectively abandoned on his behalf for the past 3 months is unfortunate.

Scott will be free to apply for any upcoming role for which he is suitably qualified."[236]

• [280] In relation to Mr Lewis' evidence that he was vaccinated with the first dose on 21 October 2021 and second dose on 19 November, Mr Eadie said that if Mr Lewis had advised DP World Sydney that he was scheduled to receive a second dose of a COVID-19 vaccination (and that he had already received the first dose), he would have been in compliance with the Mandate and his employment would not have been terminated. In relation to Mr Lewis' evidence about his initial hesitancy to be vaccinated due to a medical concern in relation to the spot on the roof of his mouth[237], Mr Eadie stated that at no stage did Mr Lewis provide any medical information in support of his concerns.

• [281] In relation to Mr Lewis' evidence that DP World permitted employees, who had been dismissed to return to work at DP World, provided that the employee provided proof of compliance with the Mandate[238], Mr Eadie said that it is correct that he reinstated two employees who had provided him with evidence that they had been vaccinated in the last week of October. In contrast, Mr Lewis waited until five weeks after his termination to provide Mr Eadie with evidence that he had been vaccinated, at which point recruitment had commenced to fill his role, in circumstances where Mr Lewis had apparently received his first vaccination before he was dismissed and did not provide any plausible reason as to why he did not advise DP World Sydney of this. Mr Eadie further stated that he was in negotiations with the MUA regarding Mr Lewis' reinstatement however those negotiations abruptly ended on the MUA's part. It was said that Mr Lewis had an opportunity to be reinstated but did not pursue this route, but he instead filed an unfair dismissal application in the Fair Work Commission.

• [282] In cross-examination, Mr Eadie confirmed that Mr Lewis' former position remained vacant at the time he became aware that Mr Lewis had been fully vaccinated, but said that recruitment for that position had commenced and he may have made an offer to the successful candidate in late November or early December 2021.[239]

• [283] In relation to Mr Grace, Mr Eadie said that on 19 October 2021, he caused a show cause letter to be sent to Mr Grace. On 22 October 2021 at 4:59 pm, Mr Eadie received a response from Mr Grace regarding the proposed termination of his employment and Mr Grace also requested that Mr Eadie meet with him to discuss his situation. On 26 October 2021 at 9:00 am, Mr Eadie attended a Microsoft Teams call with Mr Grace. According to Mr Eadie's evidence, Mr Grace was given the opportunity to bring a support person but chose to attend the meeting alone. In that meeting, Mr Eadie recalled advising Mr Grace that he was not forcing him to be vaccinated, but that Mr Grace would need to provide evidence of his vaccination status or evidence of a medical contraindication to continue his employment with DP World Sydney. Mr Eadie said to Mr Grace the fact that he was currently on workers' compensation was a separate matter and DP World Sydney required that he be ready and able to work as soon as he was deemed fit for work. Mr Eadie said that Mr Grace advised him that he needed until Saturday (30 October 2021) to meet with his GP.

• [284] On 29 October 2021, Mr Eadie caused a letter to be sent to Mr Grace advising him that DP World Sydney was prepared to provide him with additional time (until close of business on 1 November 2021) to provide evidence of his vaccination or a medical contraindication. Mr Grace, however, did not provide that evidence by 1 November 2021 and Mr Grace's employment was terminated on 2 November 2021.

• [285] Mr Eadie further stated that Mr Grace had advised him that he required until 30 October 2021 to speak with his doctor and at no stage did Mr Grace advise him that he required "at least 30 days" to access his medical information. Mr Eadie denies that this was something apparent to him. Further, Mr Eadie's view is that Mr Grace had been on notice since 16 September 2021 of the Mandate and the timeframes for compliance. Mr Eadie said DP World Sydney records indicate that, by 25 October 2021, eleven employees had provided a contraindication certificate.

• [286] In relation to Mr Grace's absence from the workplace on workers' compensation and his assertion that he was disadvantaged as he was prevented from gaining face-to-face support or participating in the consultation on site at DP World, Mr Eadie said that Mr Grace was in receipt of the relevant correspondence regarding the Mandate and if Mr Grace wished to participate in the consultation process, he could have done so by providing his views in writing or requesting a virtual meeting.

• [287] With respect to the remedy of reinstatement sought by the Sydney Applicants, Mr Eadie said that since the termination of their employment over 19 months ago, DP World has recruited and backfilled the lost headcount because of the dismissals. In the circumstances, reinstatement would not be appropriate given the length of time that has passed and the current headcount at the Sydney Terminal. In addition, Mr Eadie said that the Sydney Applicants' failure to comply with the Mandate, which was directed at keeping employees safe during a pandemic, has resulted in a loss of trust and confidence in the ability of the Applicants to perform their roles consistent with DP World Sydney's policies.

• [288] Under cross-examination, Mr Eadie was questioned in relation to Mr Ryan Williams, and whether he gave Mr Ryan Williams an opportunity to sit down with him to address his concerns in circumstances where Mr Eadie was contemplating disciplinary actions against Mr Ryan Williams. Mr Eadie accepted that he did not directly address Mr Williams' concerns.[240] Mr Eadie, however, rejected the proposition that there was no consultation in the workplace prior to DP World deciding to implement the Mandate. Mr Eadie gave evidence that "[there] was a lot of consultation. We were talking to our employees regularly and communicating with our employees regularly."[241] Mr Eadie's evidence was that "we did sit down with the employees that asked to sit down and talk with us".[242] He also said that:

"I think, given the circumstances at the time, Mr Bond, given the dynamic situation that we were dealing with and the number of employees that we were dealing with, and the rapidly changing scenarios, in other circumstances, I would certainly have taken more time to talk to these employees and respond to them, and it's one of the things in hindsight that I think I could have done better at the time, was to actually respond on an individual basis better. Having said that, these weren't the only employees we were dealing with at the time either. We were dealing with those that were getting vaccinated, we had close contacts, we were doing contract tracing on behalf of the New South Wales Health, it was a very dynamic situation. But I do, in hindsight, wish I'd spent a little bit more time responding in person to some of these employees.

...I was working 16 hours a day at that point, almost seven days a week. We were having twice daily meetings, the public health orders were changing daily, I had another 635 employees in the workplace that I was dealing with as well. I would like to have sat down with all of the employees; however, circumstances didn't really give me that luxury at that time."[243]

• [289] Mr Eadie also accepted the proposition that, with the exception of Mr Grace, Mr Mosca and Mr Lovas, neither he nor DP World HR initiated contact with any of the Sydney Applicants as a result of the personal circumstances detailed in their responses or responded to those personal circumstances.[244]

• [290] Mr Eadie accepted that some employees sent emails in response to the termination letter. When asked whether he communicated with or responded to those employees, Mr Eadie said "No. Not after the - I - no, I didn't."[245] Further, it was put to Mr Eadie that DP World had the resources to meet with individual employees, listen to their concerns and then make a determination about their employment. In response, Mr Eadie said that he "had a HR department of three people... [was] unable to provide face to face meetings because of some of the personal distancing and social distancing requirements and, frankly, [his] workload was absolutely massive - especially for the HR Department at that point."[246]

• [291] In relation to some of the Applicants who had requested to take unpaid leave to consider their positions on vaccination and their ongoing employment, a proposition was put to Mr Eadie that giving those Applicants a period of 4 weeks of unpaid leave would not have significantly affected DP World's operations. In response, Mr Eadie said that while he did give consideration to the requests for unpaid leave, he said that the Mandate was announced on 15 or 16 September 2021 and employees had had more than four weeks to consider their position and he saw no advantage in extending it any further.[247] Further, Mr Eadie said that he had no idea how long until those employees decided to get vaccinated or the circumstances changed[248] and that he could not just place those employees on indefinite leave and see what played out.[249]

• [292] In relation to those Applicants who were absent on workers' compensation and the requirement that they must still comply with the Mandate, Mr Eadie accepted that while those Applicants remained at home, they posed no risk, but added that he had no way of knowing whether those employees would be returning to work tomorrow or in six months or in two years and they had to be ready and able to return to work once they have medical clearance. On that basis, Mr Eadie's decision was to treat all employees the same, irrespective of whether they were receiving workers' compensation.[250]

• [293] In relation to the Mandate, Mr Eadie's evidence is that the Mandate remains in effect at DP World terminals today and continues to be enforced.[251] In this regard, Mr Eadie said that DP World employs a Rapid Sign-in System requiring visitors to complete a questionnaire about their vaccination status. Mr Eadie accepted that the system was largely an "honour system" as DP World does not check evidence of vaccination from visitors although DP World could require it. Mr Eadie accepted that DP World has no control over ship crews in relation to their vaccination status and the Mandate does not apply to truck drivers because arrangements have been put in place to ensure that pick-ups and deliveries are contract free. In response to my questions, Mr Eadie confirmed that the Mandate has remained unchanged since its adoption and boosters have not been required under the Mandate, but new employees are still required to provide proof of their vaccination, that is, two doses of an approved vaccine, for the purpose of complying with the Mandate.[252]

• [294] Mr Hanley is the General Manager Operations for DP World Brisbane. In relation to the process followed by DP World Brisbane in terminating the employment of the Brisbane Applicants for failing to comply with the Mandate, Mr Hanley continues to rely on the witness statements he filed in the initial hearing relating to valid reason.[253] In that regard, Mr Hanley's evidence was that on 2 November 2021, he caused letters to be sent to each of the Brisbane Applicants inviting each of them to "show cause" as to why their employment should not be terminated.

• [295] Mr Hanley said that he directed employees to "show cause" because DP World Brisbane had adopted the Mandate following an assessment and consultation process. Despite the Mandate, Mr Hanley said that the Brisbane Applicants had not provided evidence to DP World Brisbane of their vaccination status, or the evidence required to establish that they were medically exempt. Except for Mr Orel and Mr Wright, no employee requested more time to comply with the Mandate or obtain a medical exemption.

• [296] On 17 November 2021, after DP World was released from its undertaking to the Federal Court, Mr Hanley caused letters to be sent to each of the Brisbane Applicants terminating their employment. Mr Hanley said that he took the decision to dismiss any employee very seriously and before reaching the decision, reviewed all available information, such as relevant policies, length of service, disciplinary history and any information provided during the show cause process. He also took into account the effect the dismissal may have on the employee and their personal circumstances and gave consideration as to whether another form of disciplinary action would be more appropriate. Mr Hanley stated that he made the decision to terminate the employment of the Brisbane Applicants for the following reasons:

• DP World Brisbane had adopted the Mandate following a risk assessment and consultation process.
• Despite the Mandate, each Brisbane Applicant either did not provide evidence to DP World Brisbane of their vaccination status or indicated that he was not vaccinated and would remain unvaccinated.
• At no time did any Brisbane Applicant indicate to DP World Brisbane that they are medically exempt from vaccination and/or provide the required information, being a completed Australian Immunisation Register (AIR) immunisation medical exemption (IM011) Form and confirmation from the AIR that their exemption has been recorded in the AIR database.
• While one Applicant (whose application was filed more than 21 days after his dismissal and was subject to a separate hearing seeking an extension of time) provided a statement that he would not be vaccinated for religious reasons, consistent with the Mandate, only medical exemptions were accepted.
• Mr Orel and Mr Wright requested to take paid leave until the Novavax vaccine was approved, which they said would occur in December 2021. Mr Hanley said he looked into the status of Novavax and was not aware of the basis (if any) for that statement at the time. The Novavax vaccine was then still undergoing evaluation by the Therapeutic Goods Administration (TGA), and there was no indication of whether or when it would be approved for use in Australia. It was in fact provisionally approved by the TGA on 20 January 2022.
• Given that DP World relies on accessing labour from a shiftwork roster system that operates with significant labour flexibility and irregularity, the Company could not afford to have employees unavailable for an indeterminate period (if indeed they will return to work at all); if that had to occur, Mr Hanley would need to backfill the roles.

• • The Mandate was based on the approved vaccines at the time and that is where the decision was made.[254]

• [297] Mr Hanley said he considered the response received from Mr Taylor before determining to terminate his employment. In this regard, Mr Hanley denies that he did not answer individual objections or concerns raised and said that matters raised by employees were addressed in their termination letters, and he explained to the employees why those objections or concerns were not a basis for DP World not to end their employment.[255] In relation to a number of the Brisbane Applicants, including Mr Nemeth, Mr Harriss and Mr Taylor, who did not respond to the proposed termination of their employment, Mr Hanley said:

• At no stage did Mr Nemeth contact Mr Hanley to discuss his concerns with the Mandate or respond to the proposed termination of his employment and, to Mr Hanley's knowledge, he also did not engage with any other DP World Brisbane management staff; and
• At no stage did Mr Harriss engage with Mr Hanley or any other DP World Brisbane management staff regarding the Mandate or the proposed termination of his employment.

• [298] Under cross-examination, Mr Hanley accepted that he did not invite Mr Harriss to meet with him to discuss his individual concerns.[256] Further, Mr Hanley noted that on 29 October 2021 at approximately 9:55 am, while on a period of approved sick leave, Mr Harriss attended the Brisbane Terminal. Mr Hanley said he approached Mr Harriss, asked about his wellbeing and they had an exchange to the following effect:

Mr Harriss: Yes I just wanted to come and get my belongings as I won't get another chance. Do you have a problem with me on site?

• [299] Mr Hanley said his impression from the interaction with Mr Harriss was that he had resigned to the fact that his employment would possibly end with DP World.

• [300] In relation to Mr MacDonald, Mr Hanley said that Mr MacDonald did not respond to the Mandate or the proposed termination of his employment apart from sending an email to Mr Muscat on 26 October 2021 at 6:29 pm, which had been provided to Mr Hanley and which stated, among other things: "As previously discussed, I will comply with any Lawful direction but in order to do so I am going to need that direction on paper from you, preferably in the form of a Legal Notice, with D.P World letterhead and a wet ink signature." Mr Hanley said he did not provide Mr MacDonald with a "legal notice" on "DP world letterhead" with a "wet ink signature" because he considered the request to be nonsensical. During cross-examination, it was put to Mr Hanley that he should have had a conversation with Mr MacDonald about why he wanted that signed letter before terminating his employment. Mr Hanley said, "That was an option that was definitely an option, yes."[257]

• [301] In relation to Mr Nemeth and Mr Taylor, Mr Hanley noted that the material they provided in these proceedings made repeated references to Mr Eadie, Mr Hanley said that those references were incorrect. Mr Hanley said that any correspondence received by Mr Nemeth or Mr Taylor was from him as the General Manager - Operations for DP World Brisbane. It was established in the course of their evidence that Mr Nemeth and Mr Taylor obtained copies of witness statements made by one or more of the represented Applicants and adapted them for their own use, without changing this detail.

• [302] In relation to the request made by Mr Orel and Mr Wright that they be permitted to take leave and wait for the approval of the Novavax vaccine, Mr Hanley said that Novavax was still undergoing evaluation by the TGA in October 2021 and there was no indication of when it would be approved for use in Australia, or if it would ever be approved.[258] In addition, Mr Hanley said that Annexure SMO-6 to Mr Orel's witness statement, is misleading as it includes a link to the current information regarding the Novavax vaccine and indicates that the page was last updated on 13 January 2022. Indeed the "Information about the Novavax Vaccine for COVID-19" fact sheet is dated January 2022. Accordingly, the information currently included in the link is not consistent with the information in the link in October 2021, which has been updated since.

• [303] In relation to Mr Edwards, Mr Hanley said that he was employed under the Grade 3 category of the Agreement and not the Grade 2 category as set out in his statement. Further, Mr Hanley denied that Mr Edwards tried to talk with him "on a number of occasions" about his concerns regarding the vaccines or at all. Mr Hanley also denied receiving a copy of Mr Edwards' 17 November 2021 email and, to his knowledge, nor did Mr Muscat. This is likely because the email address for Mr Muscat on the document is incorrect.

• [304] Mr Hanley said that Mr Troy Williams was on approved long service leave and annual leave at the time he was required to provide evidence of his vaccination status. In Mr Hanley's view, notwithstanding that Mr Troy Williams was on leave, it would not have been difficult for him to provide DP World Brisbane with evidence of his vaccination status, but he refused to do so. Mr Hanley said that DP World Brisbane ultimately determined to provide Mr Troy Williams with additional time to provide evidence of his vaccination status.

• [305] Mr Hanley was copied on the email exchanges between Mr Muscat and Mr Troy Williams and Mr Muscat and said that in his view, Mr Troy Williams' conduct was "disingenuous". Despite being given an extension to comply with the Mandate, he ultimately advised DP World Brisbane that he would refuse to do so the day prior to his expected return to work. Given that it was clear to Mr Hanley that Mr Troy Williams was not willing to comply with the Mandate, on 3 January 2022, Mr Hanley caused a termination letter to be sent to Mr Troy Williams. Mr Hanley said that Mr Troy Williams was provided with an extension to comply with the Mandate and denied that Mr Troy Williams was "pressured" or "gaslit" to provide his vaccination status while he was on leave.

• [306] Mr Hanley said that reinstating the Brisbane Applicants was not appropriate in circumstances where they displayed a clear disregard for the Mandate and the directions of DP World which were informed by the Government isolation guidelines during a pandemic. Mr Hanley confirmed that DP World's Mandate remains in place and DP World still requires all employees to be double vaccinated.

• [307] In cross-examination, it was put to Mr Hanley that he did not bother to meet with the employees to discuss their personal circumstances. Mr Hanley said that he "did meet with a number of the employees - one on one - in [his] office and informally around the terminal."[259] It was also put to Mr Hanley that he did not conduct any disciplinary meeting as part of the show cause process or hear from the Applicants about their individual circumstances. Mr Hanley said that the show cause letters invited the employees "to contact the business to have [a] conversation, whether it was written, in person, by teams...".[260] Mr Hanley accepted that the majority of the time in disciplinary matters, he would invite an employee to attend a meeting to discuss why they should not be terminated. Mr Hanley also accepted that with respect to the Brisbane Applicants he did not offer a face-to-face meeting with a date and time but maintained that the Applicants "had the opportunity to discuss should they choose to contact the business".[261] For those employees who did not respond to the show cause letter, Mr Hanley said he did not know their circumstances through the "formal process"[262]. Mr Hanley also accepted that he did not specifically ask employees how termination of their employment was going to impact them.[263] Further, Mr Hanley maintained that disciplinary record and length of service were taken into account and agreed that some of the Applicants had lengthy periods of service and that the Applicants were generally good employees with no disciplinary issues.

• [308] In relation to the requests made by Mr Orel and Mr Wright that they be permitted to take long service leave until Novavax was approved, the proposition was put to Mr Hanley that there was no business reason why those requests could not have been granted and in response said that the business reason was that there was no known date by which Novavax would be available and jobs could not be held open indefinitely.[264] Mr Hanley was also asked what the position would have been if Mr Orel had asked for long service leave for any other reason in November 2021 and said that such a request would have been considered. In response to the proposition that when Mr Orel asked for long service leave Mr Hanley could have said he would grant it for a set period to be reviewed if Novavax did not become available, Mr Hanley said that this could have been considered but he had not agreed to allow Mr Orel to take leave. Mr Hanley also agreed that if long service leave had been granted to those who requested it, and they had been vaccinated with Novavax, they may still be employed.[265]

• [309] Mr Hanley conceded that: "I think around the show cause process that we could have done things a lot better than what we did."[266] Mr Hanley also said in response to a question from Mr Bond:

"Which is really no process other than a show cause letter and followed it by a termination letter, right?---Yes.

When you look back, Mr Hanley, on how the company handled this in Brisbane you'd do things differently, wouldn't you?---Absolutely. Yes. I think we could have done things differently and better than what we did.[267]

• [310] In relation to Mr Orel's request for long service leave and to wait for the Novavax vaccine, Mr Hanley did not dispute that Mr Orel had accrued long service leave over 24 years of continuous service and agreed that the request for long service leave was not unreasonable. While Mr Hanley accepted that Mr Orel had provided him with a link to the Australian Government website regarding the Novavax vaccine, Mr Hanley said that the information was that the vaccine would be available at "some time in early 2022" which was not a specific date,[268] and there was nothing to work towards when assessing when he would return to the workplace.[269] I put to Mr Hanley the proposition that he could have approved long service leave for Mr Orel until the date on which Mr Orel said the Novavax would become available and informed Mr Orel that if the Novavax vaccine was not available by that time, the matter would be reviewed and Mr Orel might have to make a decision about his position at that time.[270] Mr Hanley said that this was considered but he did not approve it because he did not agree and because when he looked at the Novavax vaccine, there was no definitive date of if it would be approved, and if so, when it would be approved.[271] Mr Hanley agreed that when employees requested long service leave and the request was turned down, he usually had a conversation with those employees to explain the reason for this decision. Mr Hanley accepted that he did not do this in the present case and the response employees who made this request received was a termination letter.[272] In relation to Mr MacDonald's request for a letter with a "wet ink" signature, Mr Hanley said that he deemed the request nonsensical without discussing it with Mr MacDonald and accepted that it would not have taken more than a few minutes for him to comply with the request and it would have been reasonable to have asked Mr MacDonald why he had made this request.[273]

• [311] In relation to his evidence that a number of employees had not responded to correspondence about the Mandate or to the show cause letters, and that Mr Harriss had not provided his personal statement to DP World Brisbane, Mr Hanley agreed that Mr Jason Miners, Acting Branch Secretary of the MUA had written to the Company on behalf of members expressing concerns and that he was advocating on behalf of members like Mr Harriss. Mr Hanley agreed that he responded to the correspondence from Mr Miners by basically dismissing each of the points he had raised.[274] Mr Hanley agreed that DP World Brisbane had done nothing about convincing employees to be vaccinated other than recommending that they discuss the matter with their health professional and said that it would not be right for DP World to attempt to convince employees of this matter. In response to the proposition that he did not think it was incumbent on the Company, which was directing employees to "inject something into their bodies" to convince them that what they were being asked to do was safe and effective, Mr Hanley said that was not something that DP World did.[275]

• [312] Further, Mr Hanley gave evidence under cross-examination that there was a total of 11 employees at DP World Brisbane who were not vaccinated or had not complied with the Mandate.[276] It was put to Mr Hanley that there was no reason why he could not have had a meeting with the 11 employees to discuss their individual concerns and circumstances. Mr Hanley said, "we could have done that, that process, better than what we did."[277] Mr Hanley agreed that none of the employees who were dismissed by DP World Brisbane had engaged in "misconduct" as the term is usually known and that "a slightly different process" was followed than in the past.[278] Mr Hanley had the following exchange with Mr Bond for the MUA in relation to the decision making process:

"The truth is there's nothing that any of them could have said that would have saved their jobs other than here's my proof of being vaccinated. That's the truth, isn't it? ‑No.

Can you even imagine something, that somebody could have come to you and you would have said, 'You're not vaccinated, but considering those extenuating circumstances, yes, we're going to keep you on'? ‑If there was - if there was something specific about their situation it would be taken into consideration and potentially that would have been the decision.

Like what situation? Like, 'I'm caring for my extended family and they all rely on me. They're going to get deported back to some other country and if I can't support them' - that's not going to do it, is it? ‑That's a good example and they would definitely be a consideration, if an employee had come to the business with that. Like it was a consideration for all of the responses that our employees came back to us with."[279]

• [313] In relation to whether the Mandate was still enforced, Mr Hanley confirmed that the Mandate remains in effect and that there is a sign-in process where an individual would give their vaccine status prior to being given permission to go on site.[280] Mr Hanley said there are incidences where contractors would arrive at site and their access is denied as they are not vaccinated.[281] He also accepted that he did not know whether the seafarers who delivered products to DP World were vaccinated.[282] Mr Hanley agreed that boosters have not been mandated but said they are recommended.[283] He also agreed that DP World Brisbane does not have any records of whether employees who were double vaccinated in 2021 have received a booster shot since.[284]

• [314] When asked what the point of continuing the Mandate was, Mr Hanley said that "COVID is still an active - it's still active in the community. It's a relevant risk I guess."[285] In response to my question about whether new employees would be required to show their vaccination certificates from 2021 to demonstrate their compliance with the Mandate, Mr Hanley said "yes"[286] and that they would need to demonstrate "they have a double vaccination which complies with the mandate".[287] Mr Hanley later clarified that in order to comply with the Mandate, a person would need to be double vaccinated, but not within the original timeframes.[288] Mr Hanley said that the current version of the Mandate was not in evidence. Mr Hanley agreed that if you took away the Mandate and looked at how the Respondents' operations worked before and after the pandemic, they are very similar.[289]

• [315] In cross-examination, Mr Hanley also confirmed that in July 2023, DP World recruited 30 stevedores. When asked whether the Brisbane Applicants were qualified to fill those 30 stevedore positions, Mr Hanley said that if they passed their physical examinations, they would be qualified.[290]

3.5 Notification to Applicants of termination of their employment

• [316] The majority of termination letters were sent by Mr Eadie on 25 October 2021 to the Sydney Applicants, with some letters being sent on 28 October and 2 November 2021. The content of the termination letter was in most cases identical (with exceptions identified above) and stated:

As you are aware, you were required to ensure that you provided confirmation of your vaccination status by 9am on Friday 15 October 2021. You have not done this despite multiple requests.

I refer to the letter I sent to you on 19 October 2021. In that correspondence I requested that you provide reasons why you should not be terminated for failing to comply with the vaccination requirements for employment in DP World.

You were offered the opportunity to discuss this matter with us, and you provided a reply via email ... confirming your refusal to comply with this requirement.

After considering your response, your stated intention that you would not comply with our request, it is clear that you remain unwilling to make yourself ready willing and able to work.

This is untenable and your conduct is inconsistent with an ongoing employment relationship.

On this basis DP World has made a decision to terminate of your employment with immediate effect, 25 October 2021. You will be paid any outstanding entitlements including 4 weeks pay in lieu of notice. You are reminded that you have a responsibility to return your MSIC card to your local Post Office.

DP World Sydney will continue to extend our offer of utilising the services of the free and confidential DP World CARE program provided by Assure, for a period of 8 weeks of the date of this letter. Their number is 1800 808 374.

• [317] Brisbane Applicants were sent substantially the same termination letter by Mr Hanley on 17 November 2021 (except Mr Orel who received his termination letter on 8 November 2021) with dates in the letter corresponding to those outlined in the initial letter. Most Brisbane Applicants' termination letters additionally included the following statement in relation to requests by the Company for the employees to comply with the directive:

"We have not been provided any further information since the deadline expired whether you intend to get vaccinated for Covid19. We have made multiple requests that you comply with the directive, but you have chosen not to comply for your own personal reasons."

• [318] Written submissions were filed by the MUA on behalf of the Sydney Applicants it represents. Mr Pintley who was self-represented did not provide any written submissions in support of his application and did not seek to make oral closing submissions. The MUA submitted that despite the Company's Mandate announcement stating that it had commenced consultation with its workforce and health and safety representatives (HSRs), it had not in fact consulted with its employees, its HSRs, or the Union that represents the interests of DP World employees - the MUA. The same day that the Company announced on its website its decision to mandate vaccinations, DP World Australia CEO, Andrew Adam, issued a bulletin in which he notified employees that the Company had "made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement". He also informed employees that:

"We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy."

• [319] The MUA stated that as Mr Adam freely acknowledged, DP World failed to consult with employees and HSRs prior to making a firm decision to implement its vaccine mandate. It was submitted that in fact, at no time did the Company ever engage in meaningful discussions with its employees, its HSRs or the MUA before implementing the policy.

• [320] On roughly 19 October 2021, DP World sent generic letters to the Applicants and other Sydney-based employees who had not provided evidence of their vaccination status by the Company's nominated deadlines. Those employees were invited to show cause as to why their employment should not be terminated. Approximately one week after sending out the show cause letters DP World terminated the careers of the Applicants who had failed to provide proof of vaccination against COVID-19.

• [321] In relation to the matters set out in ss. 387(b) - (h) of the FW Act, the MUA submitted that the matter in s. 387(b) is not in dispute and the matter in s. 387(e) is irrelevant. In this regard, the MUA submitted that the Applicants were notified of the reason for their dismissals as required by s. 387(b) and the Applicants were not dismissed for unsatisfactory performance, the subject of s. 387(e).

• [322] In relation to whether the Applicants were given an opportunity to respond to any reason related to their capacity or conduct as required by s. 387(c), the MUA submitted that while DP World invited the Applicants to show cause as to why their employment should not be terminated for failing to comply with the Mandate, the Company did not give them a reasonable opportunity to respond. In this regard, reference was made to the statement of principle articulated by Moore J in Wadey v YMCA Canberra[291] that the opportunity to defend implies an opportunity that might result in the employer not terminating the employment if the defence is of substance.

• [323] The MUA submitted that the Company merely went through the motions of pretending that it was providing procedural fairness to the Applicant when in fact, it had determined by 16 September 2021 that it was going to dismiss any employee who failed to provide evidence that they were fully vaccinated by a particular date. It was contended that the Applicants detailed their reasons for remaining unvaccinated and the Company did not even "have the decency to respond to those reasons". If the Company did not consider those reasons persuasive or rational, procedural fairness would dictate that the Company meet with the Applicants to address their concerns. But this did not occur. The MUA submitted that that is because DP World did not care what the reasons were for the Applicants to remain unvaccinated, and the CEO of the Company had decided that DP World would not employ any unvaccinated worker beyond its unilaterally imposed cut-off dates. In short, it is the MUA's submission that the show cause process was a complete sham.

• [324] In relation to whether there was an unreasonable refusal by DP World to allow the Applicants to have a support person in accordance with s. 387(d), the MUA submitted that since the Company did not bother to meet with the Applicants to give them an opportunity to express their concerns about the vaccine, DP World necessarily denied them the opportunity to have a support person present to discuss the Applicants' views.

• [325] In relation to ss. 387(f) and (g), the MUA said that DP World is a large, multinational employer with dedicated human resource management specialists. With its vast resources, the Company had the ability to comply with its obligations under work health and safety legislation and the DP World Sydney enterprise agreement to consult with employees prior to implementing the mandate. It was submitted that DP World has the resources to meet with the Applicants to discuss their stated concerns about the mandate. DP World's failure to do so, therefore, weighs in favour of a conclusion that the dismissals of the Applicants were unfair.

• [326] In relation to any other relevant matters under s. 387(h), the MUA submitted that DP World had failed to consult with employees before implementing the Mandate. In this regard, the MUA made reference to paragraphs [460] and [463] of the Valid Reason Decision issued on 10 January 2023. The MUA submitted that DP World's failure to comply with its consultation obligations under both the work health and safety legislation and the enterprise agreements weigh heavily in favour of a determination that the dismissals of the Applicants were unfair. While one can only speculate what would have been the outcome had the Company consulted in good faith with its employees and HSRs, it was said to be conceivable that the Company would have ultimately decided not to implement the mandate and, instead, like every other stevedoring operation in Australia, implemented less draconian control measures to minimise the spread of COVID-19 amongst its employees.

• [327] The MUA stated that similarly, had the Company complied with its consultation obligations, it may have implemented education programs such as engaging expert epidemiologists to meet with employees and HSRs to address employees' expressed concerns about the vaccines. The MUA submitted that whatever may have resulted from genuine consultation would never be known because DP World implemented its mandate without giving the Applicants a say on whether to adopt the "most drastic" control measure available to control the spread of COVID-19. In this regard, the MUA submitted that DP World's failure to consult should render the dismissals unfair, and the Applicants should be reinstated so that they are given what the law and their Agreement say they are entitled to: an opportunity to consult with the Company in relation to matters related to their workplace health and safety.

• [328] In addition, the MUA submitted that DP World failed to provide the Applicants with procedural fairness. In this regard, it was said that DP World had decided that it was going to terminate the Applicants if they failed to prove their vaccination status by the nominated deadlines before the show cause letters were sent. The MUA said that regardless of what the Applicants might have said in response to the show cause letter, they were going to be dismissed. That predetermined outcome is the exact harm that the procedural fairness doctrine is intended to remedy.

• [329] In this regard, the MUA submitted that, as the Full Bench of the AIRC in Crozier v Palazzo Corporation Pty Ltd[292] termed it, DP World well and truly shut the door after the horse bolted; the Company's bogus show cause process resulted in a total denial of procedural fairness; and that fact alone or in combination with the fact that the Company failed to comply with its consultation obligations, should result in a conclusion that the Applicants' dismissals were unfair. It was also submitted that "we don't know what would have happened if they had consulted",

• [330] In oral submissions, Mr Bond for the MUA accepted that at the time the Mandate was introduced, it may have made sense and other companies were introducing mandates as well. However, DP World introduced its Mandate by not complying with workplace health and safety consultation obligations under the Agreements and work health and safety legislation. As a result, employees were not given a say on whether the mandate should be implemented or other controls should be used, like every other stevedoring company in Australia. In this regard, Mr Bond made the following submission:

"And we don't know what would have happened had they actually consulted with their employees. Maybe they would have used different controls, but they quite arrogantly, I put to you, implemented a vaccine mandate unilaterally, and there was nothing that anybody could do or say that was going to change that fact, and they did it for economic reasons, clearly, not for the health and safety of their employees. So you've already decided that it was a lawful and reasonable direction for these employees to get vaccinated, and while I may have some disagreement with the decision that you've made on that, there's other considerations as well."[293]

• [331] It was accepted that the Respondents notified each of the represented Applicants of the reason for the termination of their employment. However, it was submitted that where the Respondents failed is with respect to s. 387(c), the opportunity to respond to the reasons for dismissal. It was also submitted that there were varying responses to the Mandate announcement and employees who did not comply were then given show cause letters and asked to respond. There were also varying types of response including "stuff downloaded from the internet". In this regard, Mr Bond submitted:

"And I've read enough of your decisions, Vice President, to know a lot of that information doesn't comply with scientific evidence that has been put in the Commission in other cases. So I don't expect you to decide the case based on some of those assertions in response to the vaccine mandate.

But what you should consider is each of the individual responses that the employees gave to the company. And I invite you to read them before issuing your decision because they are heartfelt responses. People agonised over this mandate, people suffered severe stress and anxiety over the mandate, some employees, after the fact, were hospitalised because they suffered psychological injuries as a result of the mandate and having lost their job. But none of these people were treated as an individual. You know, some of these people said, 'Look, I just need a little extra time, I need to wrap my head around it, I need to see where this is going, I need to have proof that it's going to be safe and effective, I need time to see a specialist to see whether I can get a contraindication certificate'.

But the company just held firm, 'Either it's our way or the highway'. And they stood firm all the way through. And even though they invited these people to show cause why they shouldn't be terminated, even though the company gave them a belief, gave them a hope that perhaps they could do something to save their jobs, that was never the case. Now, Mr Eadie gave evidence and said, 'I did consider the individual factors', but that clearly wasn't the case. All he needed to do is say, 'If you are not vaccinated by this particular date, then you are going to be losing your job'.

And so in inviting them to show cause and asking them to pour their heart out as to why they shouldn't lose their jobs, saying, 'I've been a great employee, I love working here', even though that was made to look like they were giving some sort of procedural fairness to these employees, they weren't. And in effect, it was somewhat cruel of the company to do that. To pretend like they were giving a procedurally fair process when they had not intention of doing so. And I don't think it's plausible for one second that Mr Eadie had any discretion whatsoever, I mean, across its port and Sydney, and in Brisbane, the effect was the same.

All these employees were given an opportunity to show cause. They all gave, you know, heartfelt reasons why they didn't want to lose their job, why they shouldn't lose their job, and every one of them was sacked, so long as they didn't have a proof of vaccination or a contraindication certificate. So really, 387C is a primary reason why these dismissals were unfair. They just were not given an opportunity to respond whatsoever. They weren't invited to attend any meetings, and Mr Eadie says that he was working 16 hours a day already, but procedural fairness and an opportunity to respond isn't thrown out the window simply because employers are busy.

If they need to bring in other people from national management to provide procedural fairness to these people, they have the resources to do it, but they never intended to give them any reasonable opportunity to respond. As soon as Andrew Adam announced that vaccine mandate it was pre-ordained that anybody who didn't get vaccinated by a particular date was going to lose their jobs. And they didn't consider any other factor than that, they didn't consider any of the factors that they're required to, to provide people under section 387 of the Fair Work Act. So had they actually, and we just don't know - I mean, you were given evidence by some of the applicants, that, no, they don't intend to get vaccinated. They won't, even if you reinstate them to their jobs. They're firm; they're not going to.

But we don't know, and we'll never know, what would have happened back in October and November of 2021, I mean, they had firm beliefs, it's obvious, most of them had firm beliefs that they would suffer harm if they got a vaccination. But if Mr Eadie had called them in, actually had a meeting with them, and said, 'Look, we're serious about this, I am going to terminate your employment if you don't get vaccinated, so I suggest you do that in the next short period of time', we don't know how many people might have done that. Because we had evidence that some people did that. The Hardys did that. We had two employees who came to the MUA, after they were terminate, who didn't think they were going to get terminated, and they said, 'Okay, can you get us our job back if we do it now?"

Now, had these people been given the opportunity to meet with Mr Eadie, I mean, for all they know they had sent a response. He said, 'Show cause why we shouldn't terminate your employment'. Each of them gave what they thought were very valid reasons. It was like, 'I've been a good employee for a long period of time, you know, I seek some leave, and I've been safe up to this point, there are other control measures', so it was reasonable for them to believe that Mr Eadie was going to consider what they had responded to them, and yet he didn't. He didn't respond to any of those individual concerns. [294]