Fair Work Act 2009

s.394 - Unfair dismissal

Applications for Unfair Dismissal - Applications heard concurrently - Dismissals not harsh, unjust or unreasonable - Applications dismissed.

• [1] Jodi Mills, Cristian Martinez Gomez, Helen Kaslar and Michelle Tisdell (collectively, the Applicants) contend they were unfairly dismissed by Village Roadshow Theme Parks Pty Ltd (VRTP/the Respondent). They seek an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicants were terminated from their positions with the Respondent after failing to comply with the Respondent's direction to be vaccinated by 17 December 2021. The events leading to the Applicants termination are to a large extent not in dispute. Rather, the Applicants primary contentions are directed to the unlawfulness of the Respondent's conduct which gives rise to their unfair dismissal claims.

• [2] As the matters could not be resolved by conciliation, they were allocated to me. Given the similarity in the cases, I listed three of the four matters for a Directions Hearing on 30 May 2022 and set Directions for filing of material, and for each of the applications to be heard concurrently. Initially, the Respondent raised a Jurisdictional Objection regarding Ms Kaslar's matter, however this was later withdrawn and the filing for the substantive matter was aligned with the other matters.

• [3] On 15 June 2022, Ms Tisdell's matter was allocated to me, and at the Directions Hearing on 29 June 2022 the parties consented to this matter being determined at the same time as the other three matters.

• [4] The matters were listed for concurrent hearing by Video on 12 and 13 July 2022. Mr Alex Smith, who is not a paid agent, represented all the Applicants. Mr Troy Spence of counsel instructed by Mr Alex Aspromourgos of Mapien represented the Respondent.

• [5] Given the volume of evidence and submissions provided by the parties, I was satisfied that it would be of use to the Commission and would not unduly prejudice the Applicants to have the assistance of the Respondent's legal representative. I was also satisfied that the presence of the Respondent's representative would enable the matter to be dealt with more efficiently. Accordingly, I allowed the Respondent to be represented.

• [6] VRTP is headquartered at the Gold Coast where it operates Warner Bros. Movie World, Sea World, Wet n' Wild Gold Coast, Australian Outback Spectacular, Paradise Country, Sea World Resort and Water Park, Village Road Show Studios and Topgolf Gold Coast.

• [7] VRTP employs approximately 2,800 employees across its operations. This number can increase to 3,400 during peak business periods such as school holidays. The vast majority of VRTP's employees are operational or with significant guest contact. These roles include, but are not limited to, Food & Beverage Attendants, Attraction Attendants, Sales Attendants, Maintenance employees, Cleaners and Animal Trainers.

• [8] Ms Mills was employed as a part time photographer at Sea World, Mr Martinez Gomez as a part time Food and Beverage Attendant at Wet 'n' Wild, Ms Kaslar as a casual Nurse at Movie World and Ms Tisdell as a Food and Beverage Leader at Movie World.

• [9] On 28 September 2021, VRTP conducted a survey of employees on their Covid-19 vaccination status. On 5 November 2021, VRTP conducted a further survey of employees on their Covid-19 vaccination status.

• [10] On 9 November 2021, VRTP sent an email to all employees advising that the Queensland Government had released a Public Health Update requiring various employees, including employees working in Theme Parks, to be fully vaccinated when 80% of the adult population (predicted to be 17 December 2021) were double vaccinated. From that time, only fully vaccinated employees would be permitted to enter Village Roadshow Theme Parks properties. All employees were required to complete the latest vaccination survey and provide copies of their certificates.

• [11] On 15 November 2021, VRTP sent an email to all employees requesting that they provide their vaccination status to People and Culture by 1 December 2021. Employees were also advised:

"As per Government restrictions, as a business we will not be able to roster Team Members who have not provided proof of their vaccination to the People & Culture team"

• [12] On 24 November 2021, VRTP sent an email to all employees reminding them to provide their vaccination status by 1 December 2021. Employees were also advised:

"If you are not fully vaccinated by 17 December, you will not be allowed be on site to perform the requirements of your role at any of our properties on and from 17 December 2021 until further notice. VRTP considers this direction to be a lawful and reasonable direction

If you have not provided evidence of your vaccination certificate or progress towards being double vaccinated by 1 December 2021, we will classify you as unvaccinated and you will be suspended without pay from 17 December 2021 until further notice."

• [13] On 8 December 2021, VRTP sent an email to all employees (including the Applicants) who had not provided their vaccination status, advising them that they could not be offered shifts from 17 December 2021. This situation would be reviewed in the week commencing 10 January 2022.

• [14] On 20 January 2022, VRTP sent an email individually to Ms Mills, Mr Martinez Gomez and Ms Tisdell requesting that they Show Cause as to why they should not face disciplinary action for failing to comply with the PH Direction and a lawful and reasonable instruction given by the employer. This same email followed on 25 January 2022 to Ms Kaslar.

• [15] On 1 March 2022, further correspondence was sent to the Applicants to seek advice whether the Applicants vaccination status had changed and if the Applicants were able to return to the roster from 18 March 2022. This again advised that that if the Applicants continued to be unvaccinated the company would have no other option than to terminate the Applicants employment.

• [16] The Applicants were notified in writing on 17 March 2022 (Termination Letter) that their employment was terminated because of their non-compliance with the Queensland Government's Public Health and Social Measures Linked to Vaccination Status Direction No (2) (Public Health Direction) and VRTP's lawful and reasonable instruction to be vaccinated in line with the Government mandate.

• [17] Therefore, the Applicants' employment was terminated because of their:

1. failure to comply with the Public Health Direction;
2. failure to comply with a reasonable and lawful direction; and
3. inability to work because of the above (at (1) and (2)).

• [18] The materials filed on behalf of each of the Applicants are hundreds of pages in length. Much of the material appears to have limited relevance to the cases at hand.

• [19] The filed written submissions on behalf of the Applicants largely focused on the lawfulness of the Covid-19 vaccinations. The submissions further went on to emphasise, amongst other things, the application of the Australian Constitution and allegations of jurisdictional misfeasance, nonfeasance and malfeasance by the Commission.

• [20] The Applicants submissions also presented an argument that there is some kind of estoppel by silence that applies because there is said to be "a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole".

• [21] The submissions were accompanied by a witness statement for each of the Applicants and hundreds of pages of attachments, which for the most part, were similar for all of the Applicants.

• [22] Mr Smith put to the Commission a series of arguments on behalf of the Applicants, claiming that the vaccine was only provisionally approved and thus only able to be used for clinical trials. He also submitted that the vaccines available were not fully approved and that the population, through the Public Health Order, were being used in a large-scale clinical trial.

• [23] VRTP submitted that they made significant efforts to communicate with the Applicants prior to the implementation of the Public Health Direction and upon the commencement of the Public Health Direction, the Applicants were notified in writing on several occasions that they were at risk of being dismissed from their employment if they did not comply with the Public Health Direction.

• [24] The Respondent submitted that in circumstances where both the Applicants and VRTP were required to comply with the Public Health Direction, it was a lawful and reasonable direction for VRTP to require the Applicants to comply with:

• [25] The Respondent submitted that prior to their dismissal, the Applicants had read and understood the Code of Conduct which required that they follow all reasonable directions; and understood that deliberately disobeying a reasonable and lawful direction would not be tolerated and would result in disciplinary action. Further, as it was made clear by all of the Applicants that they were unlikely to ever comply with the requirements of the Public Health Direction, and that, by reason of the requirements of their positions, they could not perform their work remotely, the Respondent submitted that the decision of Ms Ann-Maree O'Neill (Ms O'Neill), Head of People and Culture, to dismiss the Applicants from their employment was sound, defensible and well founded.

• [26] Part 5 of the Public Health Direction "PENALTIES" stated that "[a] person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction."

• [27] Pursuant to s 362D of the Public Health Act 2005 (Qld), a failure to comply with public health directions exposed VRTP and its officers to penalties of a maximum of 6 months in prison or a maximum fine of $13,785 (100 penalty units). The Respondent submitted that VRTP was:

1. operating Theme parks and outdoor amusement parks within the meaning of clause 9 and Schedule 1 of the Public Health Direction;
2. was required to comply with those obligations set out in Schedule 1 of the Public Health Direction;
3. was exposed to fines or imprisonment if it did not comply with the Public Health Direction.

1. staff within the meaning of schedule 2 of the Public Health Direction;
2. were required to, inter alia, comply with the requirements of clause 8 and clause 18 of the Public Health Direction.

• [29] Ms Mills filed a document found at page 38 in the Court Book which she adopted as her evidence.[1] Ms Mills accepted that her job as a photographer could not be performed at home. Ms Mills gave evidence that she had read the statement of Ms O'Neill and did not dispute any of the contents of that statement. On 15 November 2021, VRTP sent an email to Ms Mills requesting that she provide her vaccination status to the People & Culture Team by 1 December 2021.

• [30] On 21 November 2021, Ms Mills sent an email to Mr Clark Kirby (Mr Kirby), CEO, VRTP People & Culture and Ms O'Neill raising her concerns regarding the disclosure of her vaccination status and personal health information.

• [31] On 24 November 2021, Ms O'Neill sent an email to Ms Mills advising her that VRTP was complying with the Public Health Direction.

• [32] On 24 November 2021, VRTP sent an email to Ms Mills reminding her to provide their vaccination status by 1 December 2021, or she would not be allowed on site to perform the requirements of her role at any of the Respondent's properties on and from 17 December 2021 until further notice.

• [33] On 24 November 2021, Ms Mills sent an email to Mr Kirby, Leanne Clark (Ms Clark) People & Culture Business Partner and Ms O'Neill, outlining her views on the legality of the COVID-19 vaccination and the Respondent's request that she provide her vaccination status.

• [34] On 25 November 2021 in response to the above email, Ms O'Neill emailed Ms Mills seeking clarification as to what her request was regarding this email. Ms O'Neill did not receive a response to this email.

• [35] On 25 November 2021, Ms Mills sent a further email to Ms Clark and Ms O'Neill titled "SECOND NOTICE". It repeated the material sent from Ms Mills on 24 November 2021.

• [36] On 2 December 2021, Ms O'Neill met with Ms Mills at Sea World to discuss her correspondence. During the meeting Ms O'Neill said she explained to Ms Mills that they were acting on the direction given by the Queensland Government. Ms O'Neill stated that she stressed that they respected Team Members personal decision in regard to vaccinations, however they intended to act in accordance with the Public Health Order. Ms O'Neill stated that Ms Mills acknowledged that they certainly had a tough job.

• [37] On 3 December 2021, Ms Mills sent Ms O'Neill an email querying the validity of the potential suspension of staff pursuant to a Public Health Direction. Ms O'Neill emailed a response to Ms Mills providing her with a link to the latest Queensland Health information on this matter.

• [38] On 8 December 2021, VRTP sent an email to all employees (including Ms Mills) who were yet to provide details of their vaccination status advising them that they could not be offered shifts from 17 December 2021. It was also provided that this situation would be reviewed in the week commencing 10 January 2022.

• [39] On 11 December 2021, Ms Mills worked her last rostered shift. Ms Mills took a period of paid leave until 15 December 2021. On 17 December 2021, Ms Mills sent an email to Ms O'Neill raising allegations of potential civil and criminal matters that would arise as a result of VRTP following the Public Health Direction and requiring that all staff be fully vaccinated.

• [40] On 20 January 2022, VRTP sent a Show Cause to Ms Mills requesting that she set out why she should not face disciplinary action for failing to comply with the Public Health Direction and a lawful and reasonable instruction given by VRTP. Ms Mills confirmed in her oral evidence that she received this show cause notice. No response was received from Ms Mills. Ms Mills described the correspondence as harassment. Ms Mills accepted that the letter asked for a response by 24 January 2022.

• [41] On 7 February 2022, an email was sent to Ms Mills providing her with a further opportunity to respond to the Show Cause sent on 20 January 2022. This correspondence also stated that the company would not agree to a further extension after 17 March 2022 and advised that if Ms Mills continued to be unvaccinated, the company would have no option other than to terminate her employment. No response was received from Ms Mills. Ms Mills accepted that she understood her job was in jeopardy.

• [42] On 1 March 2022, an email was sent to Ms Mills asking whether her vaccination status had changed and that if it had she was able to return to the roster from 18 March 2022. This email again advised that if she continued to be unvaccinated the company would have no other option than to terminate her employment. No response was received from Ms Mills. Ms Mills confirmed in her oral evidence that she was not prepared to be vaccinated on the basis that she did not believe it was lawful. Ms Mills accepted that she did not respond to this letter.

• [43] On 17 March 2022, Ms Mills was issued with a letter of termination. In line with notice requirements, she was given 4 weeks' notice of her termination. This letter also set out that should the Public Health Direction be lifted or her vaccination status change, she was welcome to apply for future roles. Ms Mills accepted that she remained unvaccinated at the time of her termination.

• [44] Mr Martinez Gomez filed a document found at page 814 in the Court Book which he adopted as his evidence.[2] Mr Martinez Gomez was given an opportunity to respond to the evidence of Ms O'Neill. Mr Martinez Gomez said that he did not receive the email referred to at paragraph 102 of the statement of Ms O'Neill sent on 13 April 2022. Mr Martinez Gomez accepted that his role as a Food and Beverage Attendant could not be performed remotely. On 15 November 2022, VRTP sent an email to Mr Martinez Gomez requesting that he provide his vaccination status to the People & Culture Team by 1 December 2021.

• [45] On 21 November 2021, Mr Martinez Gomez sent an email to Mr Kirby and Ms O'Neill titled "Conditional Acceptance Letter - Cristian Martinez Gomez", it set out his concerns regarding the Public Health Direction. He agreed he sent the letter because he was concerned that he would not be allowed to attend the workplace if he was not vaccinated.

• [46] On 24 November 2021, Ms O'Neill emailed Mr Martinez Gomez with the relevant Queensland Government links and invited him to meet with her personally should he wish to discuss these issues further.

• [47] On 24 November 2021, VRTP sent an email to Mr Martinez Gomez reminding him to provide his vaccination status by 1 December 2021 or he would not be allowed be on site to perform the requirements of his role at any of the Respondent's properties on and from 17 December 2021 until further notice. Mr Martinez Gomez agreed he comprehended what the letter said but he regarded the vaccinations as a clinical trial and he didn't understand how the Respondent believed the direction to be vaccinated was lawful and reasonable.

• [48] On 27 November 2021, Mr Martinez Gomez sent an email titled "Decline Letter of Offer - Cristian Martinez Gomez" which expressed his views on VRTP's request for his vaccination status and that he declined to be vaccinated.

• [49] On 6 December 2021, Mr Martinez Gomez sent an email titled "Second Notice of Decline Letter to Offer".

• [50] On 8 December 2021, VRTP sent an email to all employees (including Mr Martinez Gomez) who were yet to provide details of their vaccination status advising them that they could not be offered shifts from 17 December 2021. It was also provided that this situation would be reviewed in the week commencing 10 January 2022.

• [51] On 16 December 2021, Mr Martinez Gomez worked his last rostered shift. Mr Martinez Gomez took paid leave until 9 February 2022. On 20 January 2022, VRTP sent a Show Cause to Mr Martinez Gomez requesting that he outline why he should not face disciplinary action for failing to comply with the Public Health Direction and a lawful and reasonable instruction given by VRTP.

• [52] On 23 January 2022, Mr Martinez Gomez responded to the Show Cause requesting an extension of time for him to provide a response. He also requested a copy of his employment contract and the AWU Agreement. These documents were provided to him on 25 January 2022 and an extension was granted.

• [53] On 27 January 2022, Mr Martinez Gomez emailed a further copy of the correspondence from 27 November 2021 and 6 December 2021. Mr Martinez Gomez provided the notice again making it clear he believed that the direction to be vaccinated was unlawful and unreasonable.

• [54] On 31 January 2022, Mr Martinez Gomez emailed his response to the Show Cause. Mr Martinez Gomez said he was assisted by a legal friend to write this letter.

• [55] On 7 February 2022, an email was sent to Mr Martinez Gomez offering him a further opportunity to respond to the Show Cause. This correspondence advised him that if he continued to choose to be unvaccinated, the company would have no option other than to terminate his employment. Mr Martinez Gomez accepted that he received this correspondence.

• [56] Mr Martinez Gomez did not provide a further response.

• [57] On 1 March 2022, a further email was sent to Mr Martinez Gomez asking whether his vaccination status had changed and that if it had he would be able to return to the roster from 18 March 2022.

• [58] This email again advised him that if he continued to be unvaccinated the company would have no other option than to terminate Mr Martinez Gomez's employment. Mr Martinez Gomez agreed he did not respond to this email. Mr Martinez Gomez said he felt coerced and pressured by the letters from the Respondent and he didn't want to risk his health.

• [59] On 17 March 2022, Mr Martinez Gomez was issued with a notice of termination. In line with notice requirements, he was given 4 weeks' notice of his termination. This letter also set out that should the Public Health Direction be lifted or his vaccination status change, he was welcome to apply for future roles.

• [60] On 13 April 2022, an email was sent to Mr Martinez Gomez informing him that the Public Health Direction was set to be lifted and that he was welcome to apply for vacant roles following the revocation, however, as already stated above he said he did not receive this correspondence.

• [61] Ms Kaslar filed a document found at page 1519 in the Court Book which she adopted as her evidence.[3] Ms Kaslar was given an opportunity to provide any further evidence in response to the statement of Ms O'Neill. Ms Kaslar did not take issue with Ms O'Neill's account of the facts as set out in her evidence. Ms Kaslar accepted her role could not be performed from home. Ms Kaslar confirmed she was not vaccinated at the time of the Hearing and said she would consider being vaccinated at a time when there was no longer a clinical trial.

• [62] On 15 November 2022, VRTP sent an email to Ms Kaslar requesting that she provide her vaccination status to the People & Culture Team by 1 December 2021.

• [63] On 24 November 2021, VRTP sent an email to Ms Kaslar reminding her to provide her vaccination status by 1 December 2021 or she would not be allowed on site to perform the requirements of her role at any of the Respondent's properties on and from 17 December 2021 until further notice.

• [64] On around 29 November 2021, Ms Kaslar provided VRTP's HR Department with a medical certificate stating that she was not able to have a COVID-19 vaccination at that time. Between 29 November and 16 December 2021, Ms Kaslar had an email exchange with John Donaldson (Executive OHS & Environmental Officer) where she raised a potential vaccine exemption she was seeking. Ms Kaslar also raised using a critical workforce exemption or using rapid antigen tests as an alternative. The options were not available under the Public Health Directive. VRTP submitted as Ms Kaslar never provided evidence of a valid medical exemption and they were unable to offer her any shifts.

• [65] On 8 December 2021, VRTP sent an email to all employees (including Ms Kaslar) who were yet to provide details of their vaccination status advising them that they could not be offered shifts from 17 December 2021. It was also provided that this situation would be reviewed in the week commencing 10 January 2022. Ms Kaslar confirmed she received this email.

• [66] On 8 December 2021, Colleen Parsell (Ms Parsell), Nurse Practise Coordinator, emailed the new nurses' roster to all of VRTP's nurses. Ms Kaslar was not included on the roster because she was not vaccinated. On 8 December 2021, Ms Kaslar emailed Ms Parsell stating that she was available to work on the 18th and 24th December. Due to her vaccination status remaining unchanged VRTP maintained it was unable to offer her any shifts.

• [67] On 14 December 2021, Ms Parsell emailed Ms Kaslar confirming that VRTP could not roster employees who were not double vaccinated against COVID-19. Ms Parsell also made reference to Ms Kaslar applying for a medical exemption. Ms Kaslar confirmed that her Doctor said she could not have a formal medical exemption however she said that was because the Governments had pressured ATAGI. Ms Kaslar confirmed she could not get the exemption sought.

• [68] On 12 December 2021, Ms Kaslar worked her last rostered shift.

• [69] On 10 January 2022, Ms Kaslar emailed Ms Parsell regarding rostering arrangements. Ms Parsell responded by advising her that unvaccinated employees were suspended in the system and would not be rostered until the Government mandate for theme parks changed.

• [70] On 14 January 2022, Ms O'Neill emailed Ms Kaslar and Ms Parsell to confirm that the Government restrictions were not being lifted in the near future and that VRTP were reviewing how and who this was still affecting.

• [71] On 25 January 2022, VRTP sent a Show Cause to Ms Kaslar requesting that she outline why she should not face disciplinary action for failing to comply with the Public Health Direction and a lawful and reasonable instruction given by VRTP.

• [72] On 7 February and 1 March 2022, VRTP sent further emails to Ms Kaslar. The emails referred to in the previous 2 paragraphs were sent to an incorrect email address or Ms Kaslar's VRTP email address. It is acknowledged that Ms Kaslar would not have received these communications.

• [73] On 17 March 2022, Ms Kaslar was sent a letter of termination via email and post. This letter set out the reasons for her dismissal and invited her to reapply for roles with VRTP in the event that her vaccination status changed or the Public Health Direction was lifted. Ms Kaslar said she received this letter on 22 March. Ms Kaslar accepted she received the correspondence numbered one to six in the termination letter, and confirmed she was still not prepared to get the COVID 19 vaccine. Ms Kaslar said she was unaware of the show cause process because she did not receive those communications from the Respondent.

• [74] Ms Tisdell filed a document found at page 2182 in the Court Book which she adopted as her evidence.[4] Ms Tisdell was given an opportunity to respond to the supplementary statement filed by Ms O'Neill at Court Book 2861 in response to her evidence. Ms Tisdell did not give evidence to dispute any of the factual matters in Ms O'Neill's statement.

• [75] On 12 December 2021, Ms Tisdell worked her last rostered shift. Ms Tisdell also took a period of paid leave until 25 January 2022. Ms Tisdell accepted that her job could not be performed from home.

• [76] On 20 January 2022, VRTP sent a Show Cause to Ms Tisdell requesting that she set out why she should not face disciplinary action for failing to comply with the Public Health Direction and a lawful and reasonable instruction given by VRTP.

• [77] On 24 January 2022, Ms Tisdell responded to VRTP saying, inter alia:

I refuse to comply with the government's directives for the following reasons:

First and foremost, there has not been adequate research of vaccine safety, efficacy and no long-term safety data. The current vaccines available to Australia are still only provisionally approved and still an experimental vaccine.

The government hasn't made available a viral vector vaccine which has been well studied and used for decades.

The Covid vaccine does not stop transmission of C19 in fact studies have shown that the vaccinated carry as much viral load as the unvaccinated, Also studies have shown the vaccine efficacy wanes within 6 months of vaccination. therefore, does not protect me against catching or spreading the virus.

Mandating vaccines is merely a request and goes against commonwealth laws, the constitution and the Nuremburg code.

Asking for my personal medical information which would include vaccine status as a condition of my employment goes against the privacy act 1988 sect 16b. No risk assessment was received by me from my employer regarding mandatory vaccines as a condition of my employment vrtp. Can you refer me to the section of my contract where you are unilaterally allowed to amend my employment conditions? Commonwealth Privacy act 1988 section 94H is also being breached by you, my employer.

I feel threatened and coerced by my employer VRTP to receive the vaccine which goes directly against the Australian immunization handbook. also, in violation with the Australian constitution section 51(xxiiiA). No government has authority to compel forced vaccinations by intimidation or by restriction of activities or employment.

• [78] Ms Tisdell confirmed this was her response to the show cause letter. Ms Tisdell confirmed that she was advising the Respondent by this letter that she refused to be vaccinated. Ms Tisdell said she was refusing to comply with the Government mandate.

• [79] On 7 February 2022, an email was sent to Ms Tisdell providing her with a further opportunity to respond to the Show Cause sent on 20 January 2022. This correspondence also stated that VRTP would not agree to a further extension after 17 March 2022 and advised that if Ms Tisdell continued to be unvaccinated, VRTP would have no option other than to terminate her employment. Ms Tisdell provided no further response.

• [80] On 1 March 2022, an email was sent to Ms Tisdell asking whether her vaccination status had changed and that if it had she was able to return to the roster from 18 March 2022. This email again advised that if she continued to be unvaccinated the VRTP would have no other option than to terminate her employment. No response was received from Ms Tisdell. Ms Tisdell confirmed she did not respond.

• [81] On 17 March 2022 Ms Tisdell was sent a letter from the Respondent advising that her employment was being terminated. Ms Tisdell confirmed that at the time of the hearing she continued to be refused to be vaccinated.

• [82] Ms O'Neill provided a witness statement[5] found at page 2605 in the Court Book and a supplementary statement[6] found at page 2861 in the Court Book.

• [83] In making the decision to terminate Ms Mills employment Ms O'Neill's evidence was that she considered a number of factors including:

• Ms Mills had 17 years employment with VRTP;
• Ms Mills was engaged on a permanent part time basis;
• The Public Health Direction required Ms Mills to provide evidence of COVID-19 vaccination or have a relevant medical contraindication;
• VRTP was required to ensure that all employees and guests met the requirements of the Public Health Direction;
• VRTP had communicated to all employees the vaccination requirements under the Public Health Direction since 9 November 2021;
• Ms Mills had not complied with the vaccination requirements of the Public Health Direction;
• Ms Mills did not have a relevant medical contraindication exempting her from the COVID- 19 vaccination;
• Ms Mills was suspended from work on 11 December 2021. She initially took a period of paid leave until 15 December 2021 and was on unpaid leave after that;
• Ms Mills was aware of the obligation to be vaccinated against COVID-19 for a period of 4 months prior to the decision being made to terminate her employment;
• Ms Mills had significant time to be vaccinated or provide a valid medical exemption but she did not do so;
• It appeared that Ms Mills was unlikely to ever comply with the requirements of the Public Health Direction;
• The various communications that occurred between VRTP and Ms Mills made it clear that a failure to comply with the Public Health Direction meant that she could not be rostered for work and placed her ongoing employment at risk;
• The communications sent by Ms Mills to VRTP did not provide any basis for a COVID-19 vaccination exemption under the Public Health Direction;
• Ms Mills failed to respond to the show cause correspondence sent to her by VRTP;
• Ms Mills was unable due to her failure to comply with the Public Health Direction to undertake the inherent requirements of her role of Photographer on the premises of VRTP;
• Ms Mills role could not be performed remotely or from home;
• Ms Mills failed to comply with a reasonable and lawful direction to provide evidence of vaccination against COVID-19 or a relevant medical contraindication.

• [84] In making the decision to terminate Mr Martinez Gomez, Ms O'Neill considered a number of factors including:

• Mr Martinez Gomez had approximately 8 years employment with VRTP;
• Mr Martinez Gomez was engaged on a permanent part time basis;
• The Public Health Direction required Mr Martinez Gomez to provide evidence of COVID- 19 vaccination or have a relevant medical contraindication;
• VRTP was required to ensure that all employees and guests met the requirements of the Public Health Direction;
• VRTP had communicated to all employees the vaccination requirements under the Public Health Direction since 9 November 2021;
• Mr Martinez Gomez had not complied with the vaccination requirements of the Public Health Direction;
• Mr Martinez Gomez did not have a relevant medical contraindication exempting him from the COVID-19 vaccination;
• Mr Martinez Gomez was suspended from work on 16 December 2021. He took a period of paid leave until 22 February 2022 and was on unpaid leave after that;
• Mr Martinez Gomez was aware of the obligation to be vaccinated against COVID-19 for a period of 4 months prior to the decision being made to terminate his employment;
• Mr Martinez Gomez had significant time to be vaccinated or provide a valid medical exemption but he did not do so;
• It appeared that Mr Martinez Gomez was unlikely to ever comply with the requirements of the Public Health Direction;
• The various communications that occurred between VRTP and Mr Martinez Gomez made it clear that a failure to comply with the Public Health Direction meant that he could not be rostered for work and placed his ongoing employment at risk;
• The communications sent by Mr Martinez Gomez to VRTP did not provide any basis form a COVID-19 vaccination exemption under the Public Health Direction;
• Mr Martinez Gomez 31 January 2022 response to VRTP's show cause correspondence dated 20 January 2022 requested a continuation of leave until 17 March 2022 was granted;
• Mr Martinez Gomez show cause response was considered but it did not provide a reasonable basis for not proceeding to termination.
• Mr Martinez Gomez was unable due to his failure to comply with the Public Health Direction to undertake the inherent requirements of his role as a F&B Attendant on the premises of VRTP;
• Mr Martinez Gomez role could not be performed remotely or from home;
• Mr Martinez Gomez failed to comply with a reasonable and lawful direction to provide evidence of vaccination against COVID-19 or a relevant medical contraindication.

• [85] In making the decision to terminate Ms Kaslar's employment Ms O'Neill considered a number of factors including:

• Ms Kaslar had 10 years employment with VRTP;
• Ms Kaslar was engaged on a casual basis;
• The Public Health Direction required Ms Kaslar to provide evidence of COVID-19 vaccination or have a relevant medical contraindication;
• VRTP was required to ensure that all employees and guests met the requirements of the Public Health Direction;
• VRTP had communicated to all employees the vaccination requirements under the Public Health Direction since 9 November 2021;
• Ms Kaslar had not complied with the vaccination requirements of the Public Health Direction;
• Ms Kaslar initially indicated the existence of a relevant medical contraindication exempting her from the COVID-19 vaccination. However, despite this informal advice evidence of such a medical contraindication was never provided;
• Ms Kaslar was not rostered for casual shifts after 12 December 2021;
• Ms Kaslar as a registered nurse was well aware of the obligation placed upon her to be vaccinated against COVID-19;
• Ms Kaslar had been notified by VRTP of this obligation 4 months prior to her employment being terminated;
• Ms Kaslar had significant time to be vaccinated or provide a valid medical exemption but she did not do so;
• It appeared that Ms Kaslar was unlikely to ever comply with the requirements of the Public Health Direction;
• The various communications that occurred between VRTP and Ms Kaslar made it clear that a failure to comply with the Public Health Direction meant that she could not be rostered for work and placed her ongoing employment at risk;
• The communications sent by Ms Kaslar to VRTP regarding RAT's and critical workforce exemptions did not provide any basis for a COVID-19 vaccination exemption under the Public Health Direction;
• Ms Kaslar was unable due to her failure to comply with the Public Health Direction to undertake the inherent requirements of her role as a Nurse on the premises of VRTP;
• Ms Kaslar's role could not be performed remotely or from home;
• Ms Kaslar failed to comply with a reasonable and lawful direction to provide evidence of vaccination against COVID-19 or a relevant medical contraindication.

• [86] In making the decision to terminate Ms Tisdell's employment Ms O'Neill's evidence was that she considered a number of factors including:

• Ms Tisdell had approximately 8 years employment with VRTP;
• Ms Tisdell was engaged on a permanent part time basis;
• The Public Health Direction required Ms Tisdell to provide evidence of COVID-19 vaccination or have a relevant medical contraindication;
• VRTP was required to ensure that all employees and guests met the requirements of the Public Health Direction;
• VRTP had communicated to all employees the vaccination requirements under the Public Health Direction since 9 November 2021;
• Ms Tisdell had not complied with the vaccination requirements of the Public Health Direction;
• Ms Tisdell did not have a relevant medical contraindication exempting her from the COVID-19 vaccination;
• Ms Tisdell was suspended from work on 16 December 2021. She took a period of paid leave until 25 January 2022 and was on unpaid leave after that;
• Ms Tisdell was aware of the obligation to be vaccinated against COVID-19 for a period of 4 months prior to the decision being made to terminate his employment;
• Ms Tisdell had significant time to be vaccinated or provide a valid medical exemption but she did not do so;
• It appeared that Ms Tisdell was unlikely to ever comply with the requirements of the Public Health Direction;
• The various communications that occurred between VRTP and Ms Tisdell made it clear that a failure to comply with the Public Health Direction meant that she could not be rostered for work and placed his ongoing employment at risk;
• Ms Tisdell's show cause response was considered but it did not provided a reasonable basis for not proceeding to termination;
• Ms Tisdell was unable due to her failure to comply with the Public Health Direction to undertake the inherent requirements of her role as a F&B Leader on the premises of VRTP;
• Ms Tisdell role could not be performed remotely or from home;
• Ms Tisdell failed to comply with a reasonable and lawful direction to provide evidence of vaccination against COVID-19 or a relevant medical contraindication.

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

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

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

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

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

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

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

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

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

• [88] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[7]

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

• [89] The Respondent relied on the decision in CFMMEU v Mt Arthur Coal as Full Bench authority that concluded that vaccinations are effective at preventing symptomatic transmission of COVID 19 infections and substantially reduced the risk of serious injury or death. This case is distinguishable from the Mt Arthur Coal case in that the Respondent was bound by a Public Health Direction.

• [90] The evidence has established that the relevant Public Health Direction applied to the Respondent and its employees. In light of the government mandate, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 17 December 2022. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.

• [91] I am satisfied that it was made clear by all of the Applicants that they were unlikely to ever comply with the requirements of the Public Health Direction, and that, by reason of the requirements of their positions, they could not perform their work remotely, the decision of Ms O'Neill to dismiss the Applicants from their employment was sound, defensible and well founded. Further to this, any failure of VRTP to comply with the Public Health Direction exposed VRTP and/or its officers to fines or imprisonment. In light of those intimations by the Applicants, the Respondent could not provide them with further work.

• [92] Submissions were also made that the Applicants were subject to coercion to participate in a clinical trial by means of threats to each of the Applicants continuing employment if they refused. There is nothing in the evidence concerning the four Applicants in this matter that would suggest they were subjected to unlawful coercion. Further, COVID-19 vaccinations are approved for use in Australia pursuant to Commonwealth legislation. The Applicants were each entitled to their own views about vaccination and to refuse to be vaccinated, however their respective decisions not to be vaccinated were in each case choices they made to decline to be vaccinated and pursuant to a legal requirement for entry to the Respondents workplace.

• [93] Each of the Applicants accepted that it was not possible for roles to be performed remotely and so there can be no suggestion this could form a basis to conclude that the Respondent did not have a valid reason for dismissal.

• [94] The Applicants also submitted that the Australian Constitution prohibits civil conscription and the Applicants referred to sections 51 and 109 in this regard, and that the requirement to be vaccinated was unlawful on that basis. A similar submission was made in the matter of Elizabeth Cogger v New Horizons Enterprises Limited[8] before Deputy President Saunders. I adopt the approach taken in that matter to this submission and it is rejected on that basis.

• [95] The Applicants have submitted that the requirement to be vaccinated is in breach of workplace health and safety laws on the basis that employers are breaching work health and safety laws by placing employees at risk of serious adverse reaction and possible death by forced participation in a clinical trial, or medical procedure or medical service. The Full Bench decision in CFMMEU v Mt Arthur Coal addressed issues going to the efficacy and safety of COVID-19 vaccines and there was no evidence in this matter that would lead to a different conclusion in relation to such matters as was the case in CFMMEU v Mt Arthur Coal.

• [96] The evidence also establishes that the Respondent engaged in consultation with each of the Applicants about the requirement to be vaccinated.

• [97] I am satisfied that the Applicants failure to comply with the Respondent's direction - the consequence being that the Respondent could not provide them with any further shifts or else be in contravention of the government mandate - constituted a valid reason for dismissal.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

• [98] Based on the evidence provided and submissions made, I am satisfied that Ms Mills, Mr Martinez Gomez and Ms Tisdell were made aware in the months leading up to the implementation of the mandate, that if they were not vaccinated by 17 December 2021, their employment may be terminated.

• [99] While it is conceded that Ms Kaslar did not receive Show Cause correspondence sent to her on 25 January, 7 February and 1 March 2022, VRTP submitted that Ms Kaslar's previous conduct demonstrated that she was not willing to comply with Public Health Direction, nor was she prepared to be fully vaccinated. Further to this, I am satisfied that the emails sent by Ms Parsell and Ms Kaslar between 8 December and 15 December 2021 demonstrate that Ms Kaslar was aware of the requirements for her to comply with Public Health Direction, and to be fully vaccinated.

• [100] In the case of Ms Kaslar, she adopted evidence that set out the reasons why she had chosen not to be vaccinated and the evidence supports the conclusion that to the extent that Ms Kaslar did not receive each of the pieces of correspondence that other Applicants received, it would not have changed the outcome.

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

• [101] The Applicants have not claimed that they were unreasonably refused a support person.

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

• [102] Given the reasons for the Applicants termination, this factor is irrelevant.

(f) and (g) the degree to which the size of the employer's enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

• [103] The Respondent is a large employer with a well-resourced human resources department. It undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicants in respect of the mandate, but it ultimately had very little control over what it could do if they chose not to be vaccinated.

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

• [104] I have taken into account the length of service of each of Applicants and the fact that the Respondent did not rely on other performance issues as a basis to seek to justify termination of any of the Applicants. These factors weigh in favour of each of the Applicants.

• [105] I am satisfied that the Respondent did consult with the Applicants in relation to the requirement to be vaccinated. There are no other relevant matters for consideration.

• [106] Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating each of the four Applicant's employment and that it did so in accordance with as fair a process as it could. I find that Ms Mills, Mr Martinez Gomez, Ms Kaslar and Ms Tisdell were not unfairly dismissed in accordance with the Act.

I therefore conclude that each of the four Applicant's applications be dismissed.

Mr Troy Spence of counsel instructed by Mr Alex Aspromourgos of Mapien for the Respondent.

[7] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].

[8] [2022] FWC 1267.

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