Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - dismissal not harsh, unjust or unreasonable - application dismissed.

• [1] On 18 November 2021, Ms Kathryn Roy-Chowdhury made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with The Ivanhoe Girls Grammar School T/A Ivanhoe Girls' Grammar School (School). Ms Roy-Chowdhury seeks among other things, compensation and reinstatement.

• [2] The School denies that Ms Roy-Chowdhury was unfairly dismissed.

• [3] Ms Roy-Chowdhury's application was the subject of a hearing before me on 17 and 18 February 2022.

• [4] Ms Roy-Chowdhury appeared on her own behalf. The School sought permission to be represented by Mr Matt Garozzo of counsel. Ms Chowdhury objected to the School being represented. I considered that representation of the School would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Accordingly, I granted permission for Mr Garozzo to appear for the School pursuant to section 596(2)(a) of the Act.

• [5] Ms Roy-Chowdhury gave evidence on her own behalf.

• [6] The following witnesses gave evidence on behalf of the School:

• Dr Deborah Priest - Principal;
• Mr Jarrod Guiney - Director of Corporate Services;
• Ms Cynthis Fois - Human Resources Manager.

• [7] Ms Roy-Chowdhury filed her Outline of Argument and supporting material on 27 January 2022. Without direction, she filed further material on 18 February 2022 (Additional Material). The School filed its Outline of Argument, witness statements of Dr Priest, Mr Guiney and Ms Fois and supporting material on 10 February 2022 and material in response to the Additional Material on 25 February 2022. Ms Roy-Chowdhury did not file a witness statement and it was agreed at the commencement of the hearing that her Form F2[1] and her Outline of Argument[2] would comprise her evidence in this matter.[3]

• [8] Ms Roy-Chowdhury objected to the admissibility of the witnesses statements tendered on behalf of the School (collectively, Witness Statements) in their totality.[4] The basis of the asserted inadmissibility of the statements appeared to be that the witness statements were not signed when filed,[5] there was no evidence that the witnesses had not colluded,[6] Ms Roy-Chowdhury disagreed with some of matters asserted in the statements,[7] there was no evidence that the witnesses had written the statement themselves[8] and that the statements were generally "unreliable".[9] In relation to the latter matter, Ms Roy-Chowdhury made reference to section 165 of the Evidence Act 1995 (Cth). Each witness adopted their witness statement in the witness box, following having been sworn in and confirmed that it was true and correct. Ms Roy-Chowdhury was unable to provide any evidence of collusion. Further, I consider Ms Chowdhury's reliance upon section 165 of the Evidence Act 1995 in the present circumstances to be misconceived and note that, in any event, the Commission is not bound by the rules of evidence,[10] although it generally applies them. Finally, that Ms Roy-Chowdhury disagrees with the contents of a witness statement does not render it inadmissible or unreliable. Such matters are matters for cross-examination and Ms Roy-Chowdhury was encouraged to question the witnesses in cross examination as to matters she considered to be contestable.[11] Accordingly, I considered Ms Roy-Chowdhury's objections to the Witness Statements to be without merit and received the Witness Statements. Under cross examination both Dr Priest[12] and Ms Fois[13] gave evidence that their respective statements were prepared with legal assistance. However, there is nothing improper in such a course and I do not consider anything of note arises from this. In particular, I do not consider that it leads to the conclusion that the evidence given is not that of the witness, nor that it is unreliable or amounts to "collusion".

• [9] Ms Roy-Chowdhury also objected to file notes of meetings held with her on 12 October 2021 and 8 November 2021 being relied upon and tendered by the Respondent. That objection appeared to be based on the fact that the file note of the meeting on 8 November 2021 does not contain Ms Fois' signature and also that the file notes were not forwarded to Ms Roy-Chowdhury for her to review and confirm following the meetings. I did not consider these matters provided a proper basis for the exclusion of the file notes and also received them. I have, however, considered whether Ms Roy-Chowdhury's objections affect the weight that ought be given to the file notes. As to this latter matter, I do not consider the matters raised by Ms Roy-Chowdhury indicate that the file notes ought not be given any weight or that they are otherwise unable to be relied upon. Ms Fois gave evidence that she attended both meetings and took the file notes.[14] They are a contemporaneous record of the conversations that occurred. At the foot of both file notes is Ms Fois' name, position and the date.[15] I therefore consider that nothing turns on the fact that the file note of the 8 November 2021 meeting is not signed by Ms Fois. As to the non-provision of the file notes to Ms Roy-Chowdhury, I also consider nothing turns on this. File notes are, by their very nature, internal documents for the reference of the party who made them. As such, I do not consider there was any requirement, or indeed any expectation without request, that the file notes be provided to Ms Roy-Chowdhury. Indeed, Ms Roy-Chowdhury did not request that the file notes be provided to her after the meetings, despite being aware that Ms Fois attended and took notes. She did not bring a support person to take notes on her own behalf [16] and it also appears she did not take any notes of her own at the meetings. Further, when requested in January 2022 to provide Ms Roy-Chowdhury with a copy of the file notes, the School did so. Finally, I note that in her Outline of Argument Ms Roy-Chowdhury says that whilst she did not bring a support person to the meetings at which the file notes were taken, her partner, Mr Blandford, was present in the room and overheard all of the conversations.[17] Ms Roy-Chowdhury did not call Mr Blandford to give evidence as to his recollection of the meetings. Accordingly, I do not consider that any of the above matters affect the weight that ought be given to the file notes or otherwise indicates that the file notes are unreliable. For completeness, I note that in her closing oral submission Ms Roy-Chowdhury submitted that the file notes were hearsay.[18] Whilst that may be the case, I nonetheless consider that it is appropriate to have regard to the file notes. I consider they are of assistance in determining the probability of the existence of a fact in issue, most specifically whether Ms Roy-Chowdhury was informed in the meeting of 8 November 2021 that her employment would be terminated if she remained non-compliant with the relevant public health order on 15 November 2021.

• [10] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:

• the application was made within the period required in subsection 394(2);

• the School is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;

• Ms Roy-Chowdhury was an employee who had completed a period of employment with the School The of at least the minimum employment period;

• at the time of dismissal Ms Roy-Chowdhury was a person protected from unfair dismissal; and

• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.

• [11] I have concluded that Ms Roy-Chowdhury's dismissal was not harsh, unjust or unreasonable. These are my reasons for that conclusion.

• [12] Ms Roy-Chowdhury raised a great many issues, both in her written materials and orally, a number of which lacked particularisation and/or were not relevant to the matter being addressed. Nonetheless, I have carefully considered all the matters raised by Ms Roy-Chowdhury. An absence of an express reference to a matter in this decision is not to be taken as an indication that I have failed to consider that matter.

• [13] Ms Roy-Chowdhury commenced employment with the School in the role of Risk and Compliance Manager[19] (RCM) on 20 January 2021.[20] Ms Roy-Chowdhury was employed on a part-time basis[21] working 9.00 am to 3.00 pm Monday to Thursday inclusive.[22]

• [14] Ms Roy-Chowdhury was employed pursuant to a written contract of employment dated 18 November 2021.[23] The terms of the Educational Service (School) General Staff Award 2020 (Award) applied to her employment with the School.[24]

• [15] By letter dated 15 November 2021[25] (Termination Letter) Ms Roy-Chowdhury's employment with the School was terminated effective immediately.

The Termination Letter is headed "Cessation of employment due to your non-compliance with COVID-19 Mandatory Vaccination (Workers) Direction." The Termination Letter refers the "COVID-19 Mandatory Vaccination (Specified Facilities) Directions (Public Health Directions)" and, relevantly, provides as follows:

Under the Public Health Directions, the School must not permit any education worker who is unvaccinated to attend work at the School after 25 October 2021, unless an exemption applies to the worker under the Public Health Directions.

This is a legal requirement that is imposed by the Victorian Government and the School must comply with it.

In our discussions with you on 12 October 2021 and on 8 November 202, you have advised that you are unvaccinated against COVID-19 and that you will not receive an approved COVID-19 vaccine. We note that this is not a valid exemption under the Public Health Directions.

As you are unvaccinated for COVID-19 and do not have a valid exemption under the Public Health Directions, you cannot come to work. As you would appreciate, your position as the Risk and Compliance Manager requires you to attend the School and your duties cannot be performed remotely with the return to on site learning.

... Accordingly, your employment with the School will cease today by reason of non-compliance with the Public Health Directions. Your conduct to date demonstrates that you are not ready and willing to be vaccinated with an approved COVID-19 vaccine and therefore are unable to perform your duties.

• [16] On 1 October 2021 the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination Directions (No 5) (Direction) pursuant to section 200(1)(d) of the Public Health and Wellbeing Act 2008 (PHW Act). The Direction commenced at 11.59 pm on 1 October 2021.

• [17] At the hearing Ms Roy-Chowdhury initially agreed that the Direction applied to the School[26] and that she was an education worker for the purposes of the Direction.[27] Subsequently, she retracted her agreement to those matters.[28] I note that Ms Roy-Chowdhury's subsequent retraction of agreement to those matter was not only contrary to her initial evidence but is also contrary to correspondence she sent to the School on 8 October 2021 in which she said "Whilst I understand that there is a written mandate from government which forces education facilities to ensure all staff are vaccinated ..." .

• [18] The School determined, and I also find, that the Direction applied to the School and to Ms Roy-Chowdhury's work at the School. The Direction applies to 'education facilities'[29] in respect of 'education workers.'[30] 'Education facility' is defined in the Direction to include a registered school as defined in the Education and Training Reform Act 2006.[31] 'Education worker' is defined in the Direction to include any person who is employed by an 'education operator' to work in an education facility. 'Education operator' is defined in the Direction to mean a person who owns, controls or operates an education facility, whether public, private or denominational. I find that for the purposes of the Direction the School is an education facility and Ms Roy-Chowdhury is an education worker and that the Direction applied to the School in respect of Ms Roy-Chowdhury's work at the School.

• [19] The Direction required that the School collect, record and hold vaccination information regarding workers.[32] The Direction also required that the School take reasonable steps to ensure that on or after the 'relevant date' an education worker who is unvaccinated (other than an excepted person[33] or where exceptional circumstances apply[34]) does not enter, or remain on, School premises for the purposes of working at the School.[35] The 'relevant date' was 18 October 2021.[36] Unvaccinated is defined in the Direction to mean a person who has not received a dose of a COVID-19 vaccine and does not have a valid medical exemption.[37] However, under the Direction the School could, between the relevant date and the 'first dose deadline', permit an education worker who was unvaccinated and had a booking to receive a first dose COVID-19 vaccine by the first dose deadline that will cause the worker to become partially vaccinated to enter, and remain on, the School premises for the purposes of working.[38] Relevantly, the first dose deadline was 25 October 2021.[39] Finally, the Direction required that workers be fully vaccinated by 29 November 2021.[40]

• [20] The Direction lapsed at 11.59 pm on 21 October 2021 and has been replaced on several occasions by further directions or orders substantially to the same effect and relevantly requiring the School to collect, record and hold vaccination information and to take reasonable steps to ensure that unvaccinated workers do not enter or remain on School premises for the purposes of working at the School.[41] The refusal or failure of an employer to comply with the Direction is an offence which carries a significant penalty.[42]

• [21] I find therefore that on and from 18 October 2021 unless Ms Roy-Chowdhury had received one dose of a COVID-19 vaccination or had an appointment to do so by 25 October 2021, the School had to take reasonable steps to prevent her from entering or remaining on School premises for the purposes of working at the School.

• [22] Ms Roy-Chowdhury submits that it is "questionable" that the Direction is lawful.[43] She says that the Direction breaches various provisions of the "Occupational Health and Safety Act 2004, section 51(xxiiiA) and section 109 of the Australian Constitution, [the] Biosecurity Act 2015, [the] Australian Human Rights Commission Act (1986) [and the] Privacy Act (1988)"[44] She also made submissions regarding the Constitution during the hearing[45] and cross-examined Ms Fois in relation to it.[46]

• [23] The Direction was made by the Acting Chief Health Officer pursuant to section 200 of the PHW Act in accordance with emergency powers arising from a declared state of emergency. The School was entitled to, and indeed required to, treat the Direction as lawful and requiring compliance. Further, the lawfulness of the Direction is not a matter for this Commission. At the time of the dismissal, and indeed to date, the Direction has not been declared by a court to be invalid. The Commission is an administrative tribunal and will carry out its functions accordingly to the law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. I add that in any event I do not consider the arguments advanced by Ms Roy-Chowdhury to cast doubt on the validity of the Direction.

• [24] At hearing Ms Roy-Chowdhury refused to answer questions as to whether she had to date received any vaccination against COVID-19[47] or had been vaccinated or partially vaccinated whilst employed by the School.[48] However, I consider it clear that Ms Roy-Chowdhury was not vaccinated at any time prior to the termination of employment or the lodgement of her application. Firstly, in her application Ms Roy-Chowdhury states that she has "not receiv[ed] a vaccination for Covid-19 at this present point in time."[49] Secondly, she also states in her application that in her initial correspondence with Dr Priest she "stated that I intended to wait for the Novavax vaccine which I considered was a safer option to the current COVID-19 vaccines available to me at the moment."[50] Thirdly, she says that COVID-19 vaccines approved at the relevant time were only provisionally approved by the Therapeutic Goods Administration (TGA)[51] and that she "decided that it was in her best health interests not to be inoculated with a provisionally approved COVID-19 inoculation until she was in a position to provide valid and informed consent as per the Australian Immunisation Handbook section 2.13."[52] Fourthly, in her email to the School of 8 October 2021[53] Ms Roy-Chowdhury expresses her concerns "with regards to mandatory vaccines", states she has "hesitation around vaccines that are currently on offer" and further states the she "would like to inform you of my intentions to be vaccinated once the Novavax protein-based vaccine becomes available." Finally, under cross examination Ms Roy-Chowdhury agreed that it was clear from her letter of 12 November 2021 to the School[54] that at that time she had not been vaccinated.[55]

• [25] Accordingly, I find that Ms Roy-Chowdhury was unvaccinated at all relevant times prior to her dismissal and at least up until the lodgement of her application. There is no evidence, nor does Ms Roy-Chowdhury make any such suggestion, that she was an excepted person. I therefore also find that at all relevant times prior to her dismissal the School was required to take reasonable steps to ensure that Ms Roy-Chowdhury did not enter or remain on School premises for the purposes of working at the School.

• [26] Given my conclusion that Ms Roy-Chowdhury's dismissal was not harsh, unjust or unreasonable, it is not necessary that I form any concluded view as to whether she is currently vaccinated against COVID-19, although I consider it clear that she is not.

• [27] On 22 September 2021 Dr Priest sent an email to all School employees entitled "Mandatory Vaccinations for all staff".[56] That email set out the requirements of the Direction, as set out above, and required that on or before:
  • Sunday 17 October 2021 all School employees were to provide to Ms Fois proof of having received a first dose of a COVID -19 vaccine or booking for that vaccine before 25 October 2021; and
  • Sunday 28 November 2021 all School employees were to provide to Ms Fois proof of having received a second dose of a COVID -19 vaccine.

• [28] Employees with a medical exemption were directed to contact Ms Fois to discuss the matter further. Employees were also invited to contact Ms Fois or Dr Priest to arrange a "private conversation" if they wished to discuss any aspect of the email.

• [29] On around 4 October 2021 Dr Priest held a formal briefing with all employees to reiterate the requirements of the Direction.[57]

• [30] Ms Roy-Chowdhury was part of the School's COVID-19 Management Committee (Committee).[58] Minutes from Committee meetings indicate that Ms Roy-Chowdhury attended meetings on 28 September 2021[59] and 5 October 2021[60] at which the School COVID-19 Vaccination Policy (Policy) was formulated. Indeed, Ms Roy-Chowdhury chaired the meeting on 5 October 2021[61] at which the final draft of the Policy was tabled, reviewed and endorsed (subject to external legal review).[62] On 7 October 2021 the School finalised the Policy[63] and on 11 October 2021 Dr Priest sent the Policy by email to all staff.[64] The Policy incorporates key aspects of the Directions and, relevantly, provides as follows:

"The Health Direction do not contain an exemption for a staff member who objects to the COVID-19 vaccination on personal, political or religious grounds or medical grounds that do not fall within the specified medical contraindications.

If a staff member is not exempt, but chooses not to be vaccinated, the staff member must promptly notify the Human Resources Manager by close of business on 15 October 2021.

Staff members who are not exempt, and do not have a COVID-19 vaccination by the deadline(s) set out above, will not be permitted to work or to attend the School premises to perform the duties associated with their role. This may mean that the staff member is initially absent from work on leave without pay and they will be provided with an opportunity to discuss their circumstances with the Principal and any alternative arrangements, at the School's discretion, which may be available, including:

• additional time to obtain the mandated vaccination doses;
• the staff member taking accrued annual or long service leave.

Any decision regarding alternative arrangements will be at the absolute discretion of the School, subject to its legal obligations and/or operational requirements. Staff should be aware, however, that staff who have not complied strictly with the Health Directions will not be able to attend any of the School's premises. Staff who have not complied with the Health Directions need to be mindful that this may result in disciplinary action, up to and including termination of employment as the operational needs of the School do not support remote work arrangements when Onsite Learning is taking place." [65]

Roy-Chowdhury's concerns with approved COVID-19 vaccines

• [31] Ms Fois' uncontested evidence was that on 27 September 2021 Ms Roy-Chowdhury telephoned her and advised her that she intended to wait for the Novavax vaccine to be available but was still considering whether she would receive one of the currently available vaccines. Ms Fois' uncontested evidence was also that Ms Roy-Chowdhury said words to the effect that she understood that if she was not vaccinated by the dates in the Direction it may comprise her ability to work at the School.[66]

• [32] On 8 October 2021 Ms Roy-Chowdhury emailed Ms Fois, copying in Mr Guiney.[67] In that email Ms Roy-Chowdhury said that she was "expressing [her] concerns with regards to the mandatory vaccines" and that she had "hesitation around the vaccines that are currently on offer". That correspondence also contained the following:

"Whilst I understand that there is a written mandate from government which forces education facilities to ensure that all staff are vaccinated, I would like to inform you of my intentions to be vaccinated once the Novavax protein-based vaccine becomes available...

Given that my role does not interact with students, and I have been able to 100% perform my duties from home and could feasibly do so without business interruption, I request that Ivanhoe Girls' Grammar School grants me permission to work form home or take leave without pay until I am able to receive the Novavax vaccine at my earliest opportunity.

I have relished the opportunity to work at Ivanhoe Grammar School and hope that my decision to delay vaccination until the Novavax vaccine becomes available does not jeopardise my position nor relationship with the school."

• [33] On 11 October 2021 Dr Priest responded to Ms Roy-Chowdhury in writing.[68] That letter noted that Ms Roy-Chowdhury seemed to appreciate that pursuant to the Direction education workers were required to be vaccinated and reiterated the vaccination requirements for Ms Roy-Chowdhury to be able to enter School premises after 18 October 2021. The letter also stated that the School could not exempt Ms Roy-Chowdhury from the requirements of the Direction and encouraged her to speak with her doctor if she had concerns about receiving a COVID-19 vaccine. Under the heading "What this means for you?" the letter provided as follows:

"If you remain unvaccinated or do not have a valid medical contraindication, you will not be permitted to attend work at the School's premises from 18 October 2021 until such time as you have complied with the Public Health Directions. It is a matter for you as to whether or not you comply with the Public Health Directions.

You should be aware, however, that if you are not compliant with the Public Health Directions by Tuesday 26 October 2021 (being the date on which all staff are expected to have returned to work onsite), you will be not be able to work at the School's premises and will be placed on unpaid leave. You may wish to access any accrued annual leave in lieu of unpaid leave.

As your email indicates that you intend not to comply with the Public Health Directions by the required dates, I will arrange a meeting to enable you to discuss your concerns with me as soon as possible in the hope these concerns can be resolved in the short term.

Please be mindful that, as per the School's COVID‐19 Mandatory Vaccination Policy any ongoing non‐compliance with the Public Health Directions may result in disciplinary action being taken against you which may include the termination of employment. This would be on the basis that you cannot fulfil the inherent requirements of your role. Consequently, Cynthia Fois and myself will meet with you again in the week commencing 8 November 2021 to determine whether disciplinary action will be necessary."

• [34] On 12 October Dr Priest met with Ms Roy-Chowdhury via video conference.[69] Ms Fois attended to take notes.[70]

• [35] Dr Priest's evidence was that at this meeting Ms Roy-Chowdhury repeated her concerns about the approved COVID-19 vaccines and said that she intended to wait for the Novavax vaccine, which she thought would be available in November 2021.[71] Dr Priest's evidence was that she told Ms Roy-Chowdhury that this would not meet the School's requirements. She says she told Ms Roy-Chowdhury that the School would allow her time until 15 November 2021 to get advice and make a decision about vaccination and that if she had two doses of a COVID-19 vaccine by 15 November 2021 she could return to work at that time. Dr Priest told Ms Roy-Chowdhury that she and Ms Fois would meet with her in the week commencing 8 November 2021 again "to discuss her position" and that she was able to bring a support person to that meeting.[72] She says that Ms Roy-Chowdhury told her she had carefully considered her position and respected the School's position.[73] It was agreed that Ms Roy-Chowdhury would work from home until 25 October 2021 and that following the return to on site learning on 26 October 2021, Ms Roy-Chowdhury would be on leave without pay until 15 November 2021.[74]

• [36] Ms Fois' evidence as to the meeting on 12 October 2021 is largely consistent with that of Dr Priest.[75]

• [37] Ms Roy-Chowdhury's evidence in her Outline of Argument is also that at the meeting on 12 October 2021 Dr Priest said that Ms Roy-Chowdhury needed to be vaccinated to continue her role on site at the School.[76] Under cross -examination Ms Roy-Chowdhury's evidence was that she did not recall the meeting on 12 October 2021 "very well"[77] and did not recall Dr Priest advising her that waiting for another vaccine did not meet the School's requirements.[78] She said that the meeting was "a long time ago", that a lot had happened in her life since then and that "I don't specifically reacall the details of that meeting."[79] However, she agreed that she said words to the effect that she respected the School's position,[80] and that it was agreed that she could work from home for a further two weeks,[81] after which she would be required to take leave without pay.[82] She denied that Dr Priest told her that at the end of the two weeks' leave without pay (that is, 15 November 2021), she would be required to have made a decision and inform the School of her vaccination status.[83]

• [38] For the following reasons I prefer the evidence of Dr Priest as to the content of the meeting on 12 October 2021. Firstly, Ms Roy-Chowdhury's own evidence was that did not recall the details of the meeting. Secondly, Dr Priest's evidence is consistent with her letter of 11 October 2021. Thirdly, Dr Priest's evidence is largely consistent with evidence of Ms Fois. Finally, Dr Priest's evidence is also largely consistent with Ms Fois' notes of this meeting.[84]

• [39] Accordingly, I find that on 12 October 2021 Ms Roy-Chowdhury was informed by Dr Priest that waiting for the Novavax vaccine would not comply with the Directions, that she could work from home until 25 October 2021 but from the return to on site learning on 26 October 2021 she would be placed on leave without pay until 15 November 2021. I find that she was informed that the four week period between 18 October 2021 and 15 November 2021 was to provide her time to obtain advice, make a decision as to whether she would receive an approved COVID-19 vaccination and receive the vaccine. I also find that she was informed that a further meeting would be held with her in the week starting 8 November 2021 at which time she would be required to advise the School as to her vaccination status.

• [40] It is uncontested that a further meeting via video conference was held between Dr Priest and Ms Roy-Chowdhury on 8 November 2021. Ms Fois again attended to take notes of the meeting.[85] Ms Roy-Chowdhury did not bring a support person to the meeting.[86]

• [41] Dr Priest's evidence is that at this meeting Ms Roy-Chowdhury reiterated that she intended to wait for the Novavax vaccine to become available. Dr Priest's evidence is that she told Ms Roy-Chowdhury that she should take another week to consider her position. Dr Priest says that she told Ms Roy-Chowdhury that if she had not complied with the Direction and the Policy by 15 November 2021 she should expect a letter terminating her employment with the School. Dr Priest says she reiterated to Ms Roy-Chowdhury that working from home until the Novavax vaccine became available "was not an option".[87] Dr Priest's further evidence was that she told Ms Roy-Chowdhury that if she decided to receive an approved vaccine, but was unable to receive the second dose by 29 November 2021, the School would allow her to work from home for a couple of days, and up to a period of no more than a week, as an interim measure.[88]

• [42] Ms Roy-Chowdhury's evidence in her Outline of Argument was that at no time in the meeting of 8 November 2021 (or the meeting of 12 October 2021) did Dr Priest state that her employment would be terminated. Her evidence was that Dr Priest stated that she didn't want to "lose me" and that she would have to "write me a letter" if Ms Roy-Chowdhury did not get vaccinated in the requisite timeframes.[89] Under cross examination Ms Roy-Chowdhury maintained her denial that Dr Priest told her that if she was not vaccinated within the requisite timeframes she should expect a letter terminating her employment.[90]

• [43] Ms Fois' evidence as to the meeting of 8 November 2021 is consistent with that of Dr Priest. In particular, Ms Fois' evidence is that at the meeting Dr Priest told Ms Roy-Chowdhury that if she had not complied with the Direction and the Policy by 15 November 2021 she should expect to receive a letter terminating her employment.[91] As set out above, Ms Fois took notes of the 8 November 2021 meeting.[92] Those notes are consistent with Dr Priest and Ms Fois' evidence. In particular, in relation to termination of employment the notes provide as follows:

"...DP advised that she respects KRC's right to do what she wants to do and to think about what she wants to do for the rest of this week. On Monday however, if DP has not heard from KRC she should expect to receive a letter from the School terminating her employment. Dp advised that there is nothing further the School can do. KRC reassured DP that she will be in contact with her by Monday.

• [44] For the reasons that follow, I prefer Dr Priest's evidence over that of Ms Roy-Chowdhury as to the content of the 8 November 2021 meeting. Firstly, Dr Priest's evidence is consistent with that of Ms Fois. Secondly, Dr Priest's evidence is consistent with the file note taken by Ms Fois of the meeting. Thirdly, Dr Priest's evidence is consistent with the terms of the Policy, which I note Ms Roy-Chowdhury was involved in the drafting of and aware of the contents of. Fourthly, I consider it consistent with the terms of the letter of 11 October 2021[93] from the School to Ms Roy-Chowdhury, which is set out above at paragraph [34]. Fifthly, in her Outline of Argument Ms Roy-Chowdhury says that "termination was absolutely a concern of the applicant's" but that she believed that she would be stood down until the Novavax vaccine became available.[94] She also says that she was "fearful that she may be stood down or worse still terminated."[95] I consider this unable to be reconciled with Ms Roy-Chowdhury's other evidence that she was at no time told that her employment would be terminated if she had not complied with the Direction by 15 November 2021. If Ms Roy-Chowdhury had not been told that her employment would be terminated if she did not comply with the Direction, I am unable to see why termination would "absolutely" have been of concern to her or she would have been "fearful" that she may have her employment terminated. Fifthly, on 12 November 2021 Ms Roy-Chowdhury wrote to Dr Priest regarding the 8 November 2021 meeting (see paragraph [47] below).[96] In that letter Ms Roy-Chowdhury refers to the "discussion around my employment status" held on 8 November 2021 and says, amongst other things, that "I do not want to lose my position with the School, however, I want to make an informed choice without being coerced into receiving a trial-based medical procedure. If I were to take a vaccination in order to maintain my position at Ivanhoe Girls' Grammar, I would want to understand what liability the school will accept if I have an adverse reaction."[97] I find it implausible in light of Ms Roy-Chowdhury's references in that correspondence to her employment status, losing her position with the School and receiving a vaccination in order to maintain her position at the School, that Ms Roy-Chowdhury had not been told on 8 November 2021 that if she remained not compliant with the Directions by 15 November 2021 her employment would be terminated.

• [45] Accordingly, I find that at the meeting of 8 November 2021 Dr Priest told Ms Roy-Chowdhury, amongst other things, that if she was not compliant with the Direction by 15 November 2021 (that is, remained unvaccinated by that date) her employment with the School would be terminated.

• [46] As set out above, on 12 November 2022 Ms Roy-Chowdhury wrote to the School via email.[98] Parts of that correspondence are referred to above. In addition to those matters, Ms Roy-Chowdhury reiterated that she had "serious concerns over the safety and efficacy of the COVID-19 vaccines currently available" and requested a copy of the School's COVID-19 vaccination risk assessment for the Position. She concluded by saying that she would appreciate moving forward on the risk assessment as soon as possible, "so we can work a practical, risk-based and safe approach to continuing my important role within the School."

• [47] It is uncontested that the School did not respond to this correspondence nor did the School conduct a risk assessment for COVID-19 vaccinations.

• [48] As set out above, Ms Roy-Chowdhury's employment was terminated on 15 November 202. As also set out above, the reason for her dismissal set out in the Termination Letter was her "non-compliance with the Public Health Directions" which resulted in her being "unable to perform her duties."

Was the role of Risk and Compliance Manager required to be performed on site?

• [49] It does not appear contested that on site learning resumed at the School on 26 October 2021. It also does not appear contested that on that date, students and School employees returned to the School premises. As already set out, Ms Roy-Chowdhury did not return to the School on 26 October 2021 and was on unpaid leave from that date until her dismissal.

• [50] There is nothing in the Direction which prevented an unvaccinated worker from performing their role from home. The School says the role of RCM (Position) required Ms Roy-Chowdhury to attend School premises and her role could not be performed remotely. Ms Roy-Chowdhury says that it is "questionable" that the Position required her to attend the School premises to discharge her duties.[99] At issue therefore is whether Ms Roy-Chowdhury could have performed her role remotely.

• [51] The position description for the role provides that the Position "plays a pivotal role in improving and overseeing risk and compliance across the School" and "works closely with staff across the School, including the Director of Corporate Services and the Principal."[100] In broad terms the position description provides that the Position has responsibility for risk management, compliance and policy and workplace health and safety, in addition to certain organisational responsibilities.

• [52] Ms Roy-Chowdhury's evidence was that she could have continued to work from home[101] and that she had been able to discharge her duties doing so. Her evidence was that she could perform her role exclusively from home.[102] She says that during the period of her employment she spent 16 weeks working from home due to lockdowns in Victoria and 23 weeks working on site. As such, she says that for approximately 40% of the period of her employment with the School she "satisfactorily managed" whilst working from home.[103] Ms Roy-Chowdhury says that her role does not require her to interact with students and she is able to manage interaction with staff via zoom meetings and telephone calls. She says while working from home she attended workshops and training, engaged consultants and prepared and delivered feedback to the School's board.[104] She says that the only reason she would be required on site is to conduct "the very occasional site inspection such as a building inspection." [105] She says that these were completed by Student Services and Maintenance staff due to Victoria's on-going lockdowns.[106] Under cross examination she denied that any of the duties Mr Guiney says required the RCM to be on site, did so require.[107] In particular, she denied that RCM would be required on site to participate in emergency management drills.[108]

• [53] In the Position Ms Roy-Chowdhury reported to Mr Guiney.[109] Mr Guiney's evidence was that the Position was structured across four days of the week during school hours to ensure that the RCM was physically in attendance on four out of the five days of each school week as this was important to performing the role. This had been the case for the previous incumbent also. [110] His evidence was that 2021 was a very atypical period where many unusual onsite student and staff activities had to be deferred, cancelled or adapted to other formats. Under cross examination he said that the period during which the Position was performed off-site in 2021 was "completely atypical of the conditions that exist in the school throughout the majority...of that year and through the majority of most years which still require activity on site."[111] In response to questions from the bench Mr Guiney said that when Ms Roy-Chowdhury was working from home she was not performing the functions of her role in the same way as she did when working on site because the activities that were occurring at the School were different to those when students and staff are on site.[112] He said further that during that time anything that needed to happen on site was held over or simply not performed.[113]

• [54] Mr Guiney's evidence was that there were many tasks of the Position that required Ms Roy-Chowdhury to be on site including:
  • undertaking planned physical workplace safety inspections, of which there are up to 25 per year and the RCM is typically involved in approximately one third of them;
  • conducting on site follow ups to reported incidents;
  • participation in on site audits and reviews by external bodies for compliance, risk and accreditation matters;
  • implementing required actions arising from external audits and reviews;
  • assessing onsite access and equity issues for students, staff and/or visitors;
  • undertaking issues-based on site risk assessments and coordinating responses;
• • participating in emergency management drills.[114]

• [55] I accept, as put by Ms Roy-Chowdhury, that the position description for the Position does not expressly state that the role is required on site. However, I do not consider this establishes that in the ordinary course the Position could be adequately entirely performed from home. The position description is, as is the case with most position descriptions, broad and general in nature and does not set out the detail of the tasks required to be undertaken by Ms Roy-Chowdhury in the Position. I note however that it requires a current working with children check, which would be unnecessary if the role did not require attendance on School premises. I consider that the detail of the requirements of the role of the Position are to be found in Mr Guiney's evidence.

• [56] For the reasons that follow, I prefer the evidence of Mr Guiney over that of Ms Roy-Chowdhury and I find that Ms Roy-Chowdhury could not perform the role of RCM at the School entirely from home. Accordingly, she was required to be on site at the School at least for some aspects of her role and, in accordance with the Direction, after 18 October 2021 the School was required to take reasonable steps to ensure that she did not enter, or remain, on the School's premises for the purpose of performing that work. Firstly, under cross examination Ms Roy-Chowdhury agreed that all of the 16 weeks during which she worked from home were during lockdowns when students and staff were not on site.[115] She also agreed that between each of the lockdowns, when on site learning returned, she returned to working on site.[116] Accordingly, the working from home arrangements were as a consequence of Victoria's lockdowns and in circumstances when students and most staff were not on site. As such, the circumstances were atypical and not reflective of the conditions that exist at the School ordinarily and in which the duties of the Position would ordinarily be undertaken. Secondly, in her earlier evidence Ms Roy-Chowdhury conceded that she was required on site, at least, to undertake "the very occasional site inspection". Despite this, under cross examination she denied that she was required to be on site for site inspections at all, saying that her role was to coordinate the occupational health and safety team to carry out those inspections and that her role was "purely" to ensure that the task is completed, delivered and recorded by the School.[117] Her explanation for the inconsistency in her evidence on this matter was that she had "clearly" made an "error" in the wording of her evidence.[118] I reject that explanation and consider, as was the case with Ms Roy-Chowdhury's evidence regarding the Direction, she changed her evidence to best suit her case. Accordingly, I consider her evidence on these matters to be unreliable. Conversely, I found Mr Guiney to be a credible witness and his evidence reliable. Thirdly, Ms Roy-Chowdhury did not dispute that the duties identified to be undertaken on site by Mr Guiney were duties required of the Position; rather, she disputed that the performance of those duties required her to be on site. I find it implausible that the CRM is not required on site to participate in such matters as emergency management drills, to follow up on reported incidents or to participate in audits and I accept Mr Guiney's evidence on these matters.

Was the dismissal harsh, unjust or unreasonable?

• [57] 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.

• [58] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[119]

• [59] I set out my consideration of each below.

Was there a valid reason for Roy-Chowdhury's dismissal? - Section 387(a)

• [60] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee's capacity or conduct are well established. A valid reason is one that is "sound, defensible or well founded"[120] and should not be "capricious, fanciful, spiteful or prejudiced."[121]

• [61] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[122] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.

• [62] The Act requires consideration of whether there was 'a' valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. [123] It is also well established that a valid reason need not necessarily be the one relied upon by the employer.[124]

• [63] Ms Roy-Chowdhury submits that there was no valid reason for her dismissal based on her capacity or conduct.[125] As set out above, she submits that her role did not require her to attend the School and that she could perform her role solely from home. She submits that the Respondent "fails to demonstrate the claim of serious misconduct" and that there is "no mention of receiving a provisionally approved COVID-19 inoculation in [her] ...contract".[126] She submits that the Respondent was precluded by section 16B of the Privacy Act 1988 from collecting private medical information[127] and that to do so amounts to a "serious breach" of the Australian Immunisation Handbook.[128] She submits that the Direction is inconsistent with section 51(xxiii)(a) of the Constitution and therefore that terminating her employment for non-compliance with the Direction cannot provide a valid reason for dismissal.[129] Further, she submits that the School had a choice not to "affect the Public Health Orders and chose not to exercise that choice."[130] Ms Roy-Chowdhury submits that the School "failed to recognise" that she had a valid and reasonable excuse for not complying with the Directions under section 203(2) of the PHW Act.[131]

• [64] Ms Roy-Chowdhury also submits that it was not part of her contract with the School that she be ready and willing to be vaccinated.[132] She further submits that requiring employees to be vaccinated "without considering changing contract terms and condition is forcing performance and is banned". She says this equates to "slavery and slavitude" and makes reference to Article 8 of the International Covenant of Civil and Political Rights.[133]

• [65] Both at hearing[134] and in her written materials in relation to valid reason [135] Ms Roy-Chowdhury asserts that she was "being coerced into taking a COVID-19 vaccination in order to keep my job."[136] In her Outline of Argument Ms Roy-Chowdhury says that the Respondent "failed to provide evidence of":
  • not breaching section 343 to use coercion to force her to be inoculated using one of the provisionally approved COVID-19 vaccinations;
  • not breaching section 344 to apply undue pressure to force her to be inoculated using one of the provisionally approved COVID-19 vaccinations; and
  • not breaching section 345 when the School asserts that that Ms Roy-Chowdhury is refusing to follow a public health direction and has committed serious misconduct.

• [66] For completeness, in her Outline of Argument Ms Roy-Chowdhury also makes reference to the Fair Work Ombudsman's (FWO) "COVID-19 Workplace Rights and Obligations website" and says that the role of CRM constitutes "Tier 4 work where employees have minimal face-to-face interaction as part their normal employment duties." In such circumstances she submits, consistent with the FWO's information, a direction for employees to be vaccinated against COVID-19 is "unlikely to be reasonable, given the limited risk of transmission of the coronavirus" (Tier 4 Work Submission).[137]

• [67] Finally, she submits that she informed Dr Priest that she intended to wait for the Novavax vaccine which she considered was a safer option.[138]

• [68] The Respondent submits that Ms Roy-Chowdhury's employment was terminated when, as a result of legislative direction, she was prohibited from performing the inherent requirements of her role.[139] The Respondent submits that an employee's ability to perform the inherent requirements of their position is a question of their capacity and therefore section 387(a) is engaged.[140] It submits that the Direction required the School to obtain and hold vaccination information of its workers and to take reasonable steps to ensure that after 18 October 2021 unvaccinated workers did not enter or remain on its premises.[141] It submits that the Position required attendance at the School and says that Ms Roy-Chowdhury accepts this is so at least in so far as participating in site inspections are concerned.[142]

• [69] The reasons for Ms Roy-Chowdhury's dismissal are set out in the Termination Letter. As set out above, the Termination Letter provides that Ms Roy-Chowdhury was dismissed "by reason of non-compliance with the Public Health Directions. Your conduct to date demonstrates that you are not ready and willing to be vaccinated with an approved COVID-19 vaccine and therefore are unable to perform your duties." Accordingly, at no time was it asserted that Ms Roy-Chowdhury was dismissed for serious misconduct or for a failure to comply with the Policy and I consider her submissions as to these matters to be misconceived. The Respondent characterised these submissions as "off the mark",[143] a characterisation with which I concur. Further, I consider it indisputable that an employee's inability to perform the inherent requirements of their role is a matter going to an employee's capacity. Accordingly, if established, I consider that such an inability may found a valid reason for dismissal.

• [70] I have addressed at paragraph [23] above, the lawfulness of the Direction and for those reasons also reject Ms Roy-Chowdhury's submissions as to the Privacy Act, the Constitution and any other asserted basis for the unlawfulness of the Directions. They are simply not matters for this Commission. I have also earlier found that the Direction applied to the School and to Ms Roy-Chowdhury's work in her role as CRM. I categorically reject Ms Roy-Chowdhury's submission that the School had a choice as to whether it complied with the Direction or that the fact that Ms Roy-Chowdury informed the School that she intended to be vaccinated with the Novavax vaccine at a later time when it became available is relevant in this context. Until determined otherwise by a Court of competent jurisdiction, the Direction is lawful and the School was required to comply with it. It simply did not have a choice as to compliance and indeed a failure to do so was an offence which carried a significant penalty. Under the terms of the Direction, Ms Roy-Chowdhury did not provide the required vaccination information and was therefore considered unvaccinated. Accordingly, from 18 October 2021 the Direction required that the School take reasonable steps to ensure that Ms Roy-Chowdhury did not enter or remain on the premises for the purposes of performing work. I have also earlier found that Ms Roy-Chowdhury could not perform her role entirely from home and was required to be on site for a number of duties and functions, although I accept that not all of her duties and functions required her to be physically present at the School. However, in circumstances where Ms Roy-Chowdhury's role did require her to be physically present at the School and she was prohibited from being so under the terms of the Direction, I do not consider that she was ready, willing and able to perform the requirements of her role. It is no answer to this to say that during the periods of lockdown she was able to complete her role entirely from home. The lockdowns were an emergency arrangement during which no students and few staff were present at the School. The circumstances of lockdown were atypical and not indicative of the usual or normal arrangements under which the School operates. Further, Mr Guiney's evidence was that during lockdown components of the role which required Ms Roy-Chowdhury to be on site were deferred or simply not undertaken at all.[144] Additionally, Ms Roy-Chowdhury's own evidence was that during lockdown site inspections were undertaken by maintenance staff.[145] Accordingly, temporary arrangements put in place due to emergency measures being taken by the Victorian State Government do not demonstrate that Ms Roy-Chowdhury's role was able to be performed entirely from home under usual School working arrangements.

• [71] As to Ms Roy-Chowdhury's submissions regarding sections 343, 344 and 345 of the Act, leaving aside that lack of any particularisation of these assertions or the identification of any relevant workplace right, I reject that section 343, 344 or 345 of the Act are currently engaged. Firstly, I reject the submission that Ms Roy-Chowdhury was in any way coerced by the School. The School informed her of the Direction, the requirements under it and the consequences should Ms Roy-Chowdhury be considered unvaccinated under the Direction at the relevant time. Such conduct does not, in my view, amount to coercion. Secondly, none of the matters to which section 344 applies are at issue in the current circumstances. Finally, there has been no assertion by the School that Ms Roy-Chowdhury has engaged in serious misconduct.

• [72] As to Ms Roy-Chowdhury's Tier 4 Work Submission and her submission that the requirement to be vaccinated was not a contractual requirement, I also consider these submissions to be misconceived. Firstly, the requirement that after 18 October 2021 Ms Roy-Chowdhury be vaccinated in order to perform her work on site at the School arose from the Direction. The Direction was made pursuant to powers conferred under PHW Act. The requirement therefore was mandated by legislation. No direction that Ms Roy-Chowdhury be vaccinated was made by the School and her dismissal was based on her inability to perform the requirements of the Position. Accordingly, in the present circumstances, no question of a reasonable and lawful direction arises and the information provided by the FWO is not relevant. Secondly, for the same reason, no question as to the terms of Ms Roy-Chowdhury's contract of employment arises. Matters of contract were not relevant in the context of a legislatively mandated requirement. Thirdly, the School did not require Ms Roy-Chowdhury to be vaccinated. She was at all times entitled to choose not to be so and indeed did exercise that choice. However, the consequence of that choice was that after 18 October 2021 the School had to take reasonable steps to prevent her from being on School premises for the purposes of performing work.

• [73] Finally, as to Ms Roy-Chowdhury's submissions in relation to section 203(2) of the PHW Act, I consider those submissions to misconstrue the sections of the legislation relied upon. The Chief Health Officer made the Direction in exercise of emergency powers pursuant to section 199 and section 200 of the PHW Act.[146] Section 203(1) provides that a person must not fail or refuse to comply with a direction given or a requirement made in the exercise of a power under an authorisation given under section 199. Section 203(2) provides that a person is not guilty of an offence against subsection (1) if they had a reasonable excuse for refusing or failing to comply with the direction or requirement. The Direction imposed obligations upon "operators of specified facilities in relation to the vaccination of workers". In the present case that is the School. Accordingly, the provisions of section 203(2) apply to the School, not Ms Roy-Chowdhury, and would, if engaged, render the School not guilty of an offence.

• [74] Accordingly, I consider that Ms Roy-Chowdhury was not ready, willing and able to perform the requirements of the Position and, as such, there was a valid reason for Ms Roy-Chowdhury's dismissal related to her capacity.

Was Roy-Chowdhury notified of the valid reason? - Section 387(b)

• [75] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee's employment,[147] and in explicit[148] and plain and clear terms.[149] In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport)[150] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[151]

• [76] Ms Roy-Chowdhury submits that she was never given any notice of termination. She submits that her rights under section 343, 344 and 345 of the Act "were violated."[152] She submits that the correspondence regarding compliance with the Direction says that her employment "may be terminated" and that as such she was never given notice that her employment would be terminated.[153]

• [77] The Respondent submits that Ms Roy-Chowdhury was notified that her employment would be terminated on 15 November 2021 and relies, amongst other things, upon the notification of all staff on 22 September 2021, the provisions of the Policy and Ms Roy-Chowdhury's involvement in the development of that Policy, the letter dated 11 October 2021 and the meetings on 12 October 2021and 8 November 2021.[154]

• [78] I consider that Ms Roy-Chowdhury was notified that her employment would be terminated if she did not comply with the Direction, as submitted by the Respondent. Further, I consider this is evidenced by Ms Roy-Chowdhury's own correspondence, from as early as 8 October 2021, where she says that she hopes her decision to delay vaccination until the Novavax vaccine is available does not jeopardise her position.[155] Further, in her letter of 12 November 2021 Ms Roy-Chowdhury says "I do not want to lose my position with the School." However, most relevantly, I have earlier found that at the meeting of 8 November 2021 Dr Priest told Ms Roy-Chowdhury that if she was not compliant with the Direction by 15 November 2021 (that is, remained unvaccinated by that date) her employment with the School would be terminated. My reasons for that finding are set out in paragraph [45] above.

• [79] As to Ms Roy-Chowdhury's submissions regarding sections 343, 344 and 345 of the Act, it is entirely unclear to me how Ms Roy-Chowdhury says those provisions are relevant to whether she was notified of the reason for her dismissal. I consider those submissions to be misconceived.

• [80] Accordingly, I find that Ms Roy-Chowdhury was notified of the valid reason for her dismissal.

Was Roy-Chowdhury given an opportunity to respond to any valid reason related to her capacity or conduct? - Section 387(c)

• [81] Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[156]

• [82] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[157] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[158]

• [83] In Wadey v YMCA Canberra[159] Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

"[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend."

• [84] Ms Roy-Chowdhury submits that she was not afforded a right of response. She says that "In lieu of the undue influence, coercion and economic distress that I felt under in my workplace, I was not afforded a right of response."[160]

• [85] The Respondent submits that Ms Roy-Chowdhury was given numerous opportunities to respond to the valid reasons including at the meetings on 12 October 2021 and 8 November 2021.[161]

• [86] As already set out, there was correspondence by Ms Roy-Chowdhury to the School on 8 October 2021 and 12 November 2021 and meetings on 12 October 2021 and 8 November 2021 with her regarding the Direction. I am satisfied that Ms Roy-Chowdhury was given an opportunity to respond to the reason for her dismissal and that opportunity was reasonable. I reject her submissions on this point as misconceived.

Did the School unreasonably refuse to allow Roy-Chowdhury to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)

• [87] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.

• [88] Ms Roy-Chowdhury concedes that she did not specifically request a support person at the meetings with Dr Priest.[162] In oral submissions Ms Roy-Chowdhury submits that "there was no relevance to 387(d) because the contents of the meetings were not what they claimed" and that the Respondent is not able to provide any evidence that the meetings were as recorded in the file notes. She says she was not afforded a right to respond to the file notes and verify their contents.[163]

• [89] The Respondent submits that Ms Roy-Chowdhury did not request a support person be present at either of the meetings on 12 October 2021 or 8 November 2021 and accordingly, there was no refusal to allow a support person**.**

• [90] Ms Roy-Chowdhury concedes that she did not request a support person. Accordingly, there was no refusal to allow a support person to be present. As to Ms Roy-Chowdhury's submissions regarding the content of the meetings and the file notes taken at those meetings by Ms Fois, those matters are not relevant to this ground of consideration. Additionally, I have addressed earlier in this decision Ms Roy-Chowdhury's objections to the file notes.

Was Roy-Chowdhury warned about unsatisfactory performance before the dismissal - Section 387(e)

• [91] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.

• [92] It is uncontested that Ms Roy-Chowdhury's dismissal was not related to her performance.[164] This ground is therefore not presently relevant.

To what degree to which the size of the employer's enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in the School's enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)

• [93] Section 387(f) and (g) require the Commission take into account the degree to which the size of the employer's enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

• [94] The School employees 273 employees[165] and is a seemingly well resourced private school. The size of the employer's enterprise would have no impact on the procedures followed in effecting dismissal. There was no absence of a dedicated human resource management specialist or expertise in the School's enterprise. Ms Fois was present for all meetings and was involved in discussions with Ms Roy-Chowdhury regarding her vaccine hesitancy. Accordingly, section 387(g) has no application.

• [95] For completeness, I note Ms Roy-Chowdhury's closing oral submissions on these matters.[166] I do not consider them relevant to the considerations which arise under section 387(f). I do, however, concur with her submission that the School is a well resourced organisation,[167] although I note that this consideration is relevant to procedures relating to the dismissal, rather than resources to conduct the hearing.

What other matters are relevant? - Section 387(h)

• [96] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

• [97] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation[168] the Full Bench stated that:

"That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be 'relevant matters' that do not bear upon whether there was a 'valid reason' for the dismissal but do bear upon whether the dismissal was 'harsh, unjust or unreasonable'."[169]

• [98] Firstly, Ms Roy-Chowdhury submits that the School had a choice not to effect the Direction but chose to do so and "to violate the human rights of its employees" and place the School "under criminal liability." [170] Elsewhere Ms Roy-Chowdhury also made reference to the "Criminal Code Act 1995"[171] Secondly, Ms Roy-Chowdhury says that the School failed to consult with her regarding the introduction of the Policy and she also submits that the School failed to "discuss the public health orders".[172] She submits that these failures are in breach of clause 8 of the Award. In her Outline of Argument Ms Roy-Chowdhury also makes reference to the duty to consult under section 35 of the Occupational Health and Safety Act 2004 (Vic).[173] Thirdly, Ms Roy-Chowdhury says she was not given notice of termination in accordance with section 117 of the Act.[174] Fourthly, Ms Roy-Chowdhury submits that the School failed to respond to her email of 12 November 2021 or to conduct a risk assessment in relation to COVID-19 vaccinations.[175] Considerable time was spent cross-examining the Respondent's witnesses about this matter.[176] Fifthly, Ms Roy-Chowdhury relied upon the dissenting decision of Dean DP in Kimber v Sapphire Coast Community Aged Care Limited [2021] FWCFB 6015 (Kimber).[177]

• [99] The Respondent submits that it is relevant that Ms Roy-Chowdhury "is clearly still unvaccinated."[178] As such, it submits that even if arrangements could have been put in place to facilitate Ms Roy-Chowdhury working remotely, such arrangements cannot be seen as a "temporary stopgap" and would, in effect, result in a radical change to the Position.[179] The Respondent further submits that on and from 26 October 2021 Ms Roy-Chowdhury was on a period of unpaid leave as she was not ready, willing and able to perform the inherent requirements of her role and that state continued for the period of one week after that date. In those circumstances, it submits, in summary, that Ms Roy-Chowdhury was not entitled to be paid for the notice period.[180] As to the duty to consult under the Award, the Respondent submits, that the obligation did not apply to the introduction of the Policy. It says that any change resulted from the introduction of the Directions and was not a decision of the School. Further, it says that the introduction of the Policy was not a change in 'production, program, organisation, structure or technology' As such, there was no relevant 'change'. Finally, it says that in any event, the School did consult.[181]

• [100] I have earlier addressed Ms Roy-Chowdhury's submission that the School had a choice as to whether it complied with the Direction. I categorically reject that submission.

• [101] As already set out above, I have found that Ms Roy-Chowdhury was provided with notice of termination in the meeting of 8 November 2021. I accept that this was not given in writing however I do not consider that any unfairness arises from this. I am satisfied that not only had Ms Roy-Chowdhury been on notice for some time that her employment may be terminated if she remained unvaccinated by 15 November 2021 but also that she was expressly told on 8 November 2021 that her employment would be terminated on 15 November 2021 if she was not vaccinated by that date. I am also satisfied that Ms Roy-Chowdhury was not entitled to any payment of notice under section 117 of the Act. Under section 117(2)(b) the School was entitled to dismiss Ms Roy-Chowdhury, effective immediately, by making payment in lieu of notice of the amount she would have received for the hours she would have worked in her notice period. As Ms Roy-Chowdhury was on leave without pay at that time notice was given and also at the time of her dismissal she was not working any hours and was therefore not entitled to any payment.

• [102] As to the asserted failure to consult, at the time of the introduction of the Policy, the relevant provision of the Award was clause 29. That clause though is in the same terms as clause 8, referred to by Ms Roy-Chowdhury. Clause 29.1 of the Award provides that "If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must ...". The clause then goes on to set out a number of consultation obligations for the School to comply with. The Policy was introduced because of, and to reflect the terms of, the Direction. I therefore accept the submission that School did not make a decision as is required under clause 29.1. Further, whilst noting the comments of the Full Bench in CFMMEU v Mount Arthur Coal Pty Ltd [2021] FWCFB 6059[182] I incline to the view that the introduction of the Policy was not a change in 'organisation' and there is, therefore, no relevant 'change'. In any event, should I be wrong on both of those matters, I consider it clear that the School did consult with its employees regarding the introduction of the Policy.

• [103] I consider Ms Roy-Chowdhury's submissions that the School did not respond to her email of 12 November 2021 nor conduct a risk assessment to be of no weight. Firstly, the Directions required that after 18 October 2021 the School take reasonable steps to ensure that Ms Roy-Chowdhury not attend the School premises to perform her role if she remined unvaccinated. A risk assessment of any type was of no relevance in those circumstances. Secondly, the vaccines were approved by the TGA. Accordingly, no further risk assessment relating to the vaccines was required, necessary or relevant.

• [104] Finally, I do not find the decision of Dean DP in Kimber to be of any assistance.

• [105] I have not given any weight to Ms Roy-Chowdhury's current vaccination status.

• [106] I have, however, taken into account that Ms Roy-Chowdhury was provided with an additional four weeks after 18 October 2021 to consider her position regarding vaccination. I have also taken into account that if Ms Roy-Chowdhury decided to receive an approved vaccine but was unable to have the second dose prior to 29 November 2021, the School would have allowed her to work from home for a couple of days, and up to a period of one week, as an interim measure.

• [107] I have made findings in relation to each matter specified in section 387 as relevant.

• [108] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[183]

• [109] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that there was a valid reason for Ms Roy-Chowdhury's dismissal and that she was accorded procedural fairness. The dismissal of Ms Roy-Chowdhury was not harsh, unjust or unreasonable and was, therefore, not unfair.

[4] See for example, Transcript PN 167, PN 425

[6] See for example, Transcript PN 407, PN 409-414

[7] See for example, Transcript PN 417-424

[10] Fair Work Act 2009 (Cth), section 591

[11] Transcript PN 424, PN 430

[19] Applicant's Outline of Argument at question 1(b)

[20] Applicant's Outline of Argument at question 1(a)

[21] Applicant's Outline of Argument at question 1(c)

[22] Applicant's Outline of Argument at question 1(d)

[29] Direction, Section 1(3)

[30] Direction, Section 8(7), Schedule 1

[31] Direction, Section 9, (b) and (e)

[32] Direction, Section 4(1)

[33] Direction, Section 4, Section 8(1)(d), Section 8(5)

[34] Direction, Section 6

[35] Direction, Section 5

[37] Direction, Section 8(1), (4),(5)

[38] Direction, Section 4(3)

[40] Direction, Section 4, Section 8(1)-(4), (7), Schedule 1

[41] At the time of hearing the relevant directions was COVID-19 Mandatory Vaccination (Specified Facilities) Directions No.12

[44] Exhibit A1, q3.2, Exhibit A2, q.4c at 4.9- 4.11, Exhibit A2, q.6(d) at 6.18, Transcript PN 1931-1934

[48] Transcript PN 109, PN 111, PN 112

[54] Exhibit A3, Attachment 4, Exhibit R5, Attachment 16

[64] Exhibit R1 at [7], Transcript PN [1774]

[66] Exhibit R3 at [4], Exhibit R5, Attachment 4, Transcript PN 193, PN 194

[67] Exhibit R3 at [5], Exhibit R5, Attachment 9

[68] Exhibit R5, Attachment 10, Exhibit R1 at [8], Transcript PN 205

[69] Exhibit R1 at [9], E6], Exhibit R3 at [6], Exhibit A2, q.4f at 4.21

[70] Exhibit R1 at [9], Exhibit R3 at [6], Exhibit A2, q.4f at 4.23

[85] Exhibit R1 at [12], Exhibit R3 at [8], Exhibit A2, q.4f at 4.23

[86] Exhibit A2, q.6d at 9, Respondent's Outline of Argument at question 3(h)

[90] Transcript PN 237-239, PN 247, PN 290

[93] Exhibit R5, Attachment 10, Exhibit R1 at [8],

[96] Exhibit A3, Attachment 4, Exhibit R5, Attachment 16

[97] Exhibit A3, Attachment 4, Exhibit R5, Attachment 16

[109] Exhibit R2 at [3], Transcript PN 938

[119] 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]

[120] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373

[122] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685

[123] Hatwell and Another v Esso [2018] FWC 2398 at [76]

[124] Hatwell and Another v Esso [2018] FWC 2]398 at [76]

[125] Exhibit A2, q.6d at 6.1, Transcript PN 1912

[134] See for example Transcript PN 1614, 1619

[135] Applicant's Outline of Submissions at question 4(c) 4.17

[147] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151

[148] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

[150] (2000) 98 IR 137

[151] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151

[154] Respondent's Outline of Argument at q.3e, Transcript PN 1968-1970

[156] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

[157] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15

[158] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7

[159] [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544

[161] Respondent's Outline of Argument at q.3f

[164] Exhibit A2 at [10], Transcript PN 1924, Respondent's Outline of Argument, q.3c, q.5

[168] [2013] FWCFB 6191; (2013) 238 IR 1

[171] Transcript PN 1929, Applicant's Outline of Argument q.4d at [4.20.2]

[172] Further submissions of the Applicant, dated 17 February 2022\, Transcript PN 1939

[173] Applicant's Outline of Argument at q.5e, q.6d at [6.17], [8.3], [8.7]

[174] Further submissions of the Applicant, dated 17 February 2022

[175] Applicant's Outline of Argument, q.4c at [4.6]

[176] See for example PN 1640, 1648, 1656

[177] Applicant's Outline of Argument, q.4c at [4.4]

[180] Respondent further submissions at [2.1-2.8]

[181] Respondent further submissions at [3.1-3.8]

[183] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6-7]

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