Lamarre-Condon v Commissioner of Police, NSW Police Force

Industrial Relations Commission (NSW)|2022-11-22|Before: Michael J

M Watts of counsel (Respondent) Solicitors: Makinson d'Apice Lawyers (Respondent) File Number(s): 2022/00101622 Publication restriction: Nil

DECISION

Jamila Lamarre-Condon was employed by the respondent, the Commissioner of Police, as a radio communications officer. Her employment was terminated on 11 March 2022, which happened to be her birthday, as a result of her failure to comply with a direction given by the respondent in relation to COVID-19 vaccinations.
Specifically, on 7 September 2021, the respondent, who at that time was Michael J Fuller, issued a written direction to all members of the New South Wales Police Force (NSWPF) regarding COVID-19 vaccination (Direction). The Direction was in the following terms: 1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. if the duties are performed on or after 30 September 2021 the member has received at least one dose of COVID-19 vaccine; and b. if the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccination evidence. 3. The directions in 1 and 2 above do not apply to a member of NSWPF: a. who is unable, due to a medical contraindication, to receive a COVID-19 vaccine and presents a medical contraindication certificate in the form approved by NSW Health (accessible via Service NSW) to their manager, supervisor or Commander; or b. as I determine appropriate in my absolute discretion, or the absolute discretion of a member of NSWPF I delegate to make such a determination, subject to consideration of their specific circumstances at the time of determination. To ensure, so far as reasonably practicable, the safety of members of NSWPF an individual asserting an inability to comply with direction 1 for a medical reason may be directed to attend the Police Medical Officer or independent medical practitioner for further clarification or assessment of their medical contraindication/condition. Failure of a NSWPF member to comply with this direction will ultimately result in management action. Given the effort of all members of NSWPF to date during the pandemic I trust this will not be necessary and members come together to protect themselves, their colleagues and members of the NSW community.

The Bases Upon which the Applicant asserted her dismissal was unfair

The applicant submitted in her Unfair Dismissal Application dated 30 March 2022, which it seems was prepared by, or with the assistance of, a solicitor, that her dismissal was unfair for the following reasons: 1. the Direction was not lawful or reasonable as "the evidence demonstrates that the COVID-19 vaccines are neither safe nor effective" and hence the applicant "believes it puts her life and health in danger"; 2. the Direction was not lawful or reasonable because the respondent failed to comply with the consultation obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act); 3. the Direction was not lawful or reasonable because the applicant was only notified of it after the deadline to receive the COVID-19 vaccine; 4. the Direction was not lawful or reasonable because it required her to submit personal medical information in circumstances where she was not provided with information regarding the collection of such information as required under the Privacy Act 1988 (Cth) and the Australian Privacy Principles; 5. the respondent failed to follow the "Grievance and Dispute Settling Procedure" set out in cl 9.4 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award; 6. the respondent engaged in coercion and duress by referring her matter between departments of NSWPF and her 'genuine' health and safety concerns for herself and her baby appeared to be ignored or not taken seriously; 7. the decision to terminate her was unjust or unreasonable in circumstances where she had elected to cease work due to an unsafe workplace pursuant to s 84 of the WHS Act; 8. her termination was harsh in circumstances where she and her partner are now unemployed with a small baby and are struggling financially, with their only source of income being parenting payments from the Commonwealth Government.
In her written 'Response to Respondent's Submissions and Evidence' dated 1 July 2022, the applicant asserted that her dismissal was unfair because: 1. directing an employee not in the workplace to comply with a workplace policy is not lawful or reasonable; 2. the Direction was not lawful or reasonable because the respondent failed to comply with the consultation obligations under the WHS Act, including because: 1. she was not given an opportunity to express her views regarding the Direction; 2. the consultation with the unions with industrial coverage of the NSWPF workforce (being the Police Association of NSW (PANSW) and the Public Service Association (PSA)) occurred after the Direction was made; 3. while support for the Direction was obtained from the PANSW, the PSA, being the union entitled to represent the applicant's interests, did not engage with the NSWPF regarding the Direction; 4. the ability to apply for an exemption from compliance with the Direction did not meet the respondent's obligations under ss 47 and 48 of the WHS Act; and 5. the provision of information regarding the COVID-19 vaccines alone did not satisfy the requirement for consultation; 1. she had reasonable health and safety concerns regarding the vaccines, in particular concerns about the safety of the vaccines in lactating women and the respondent did not respond to those concerns in an appropriate and proportionate way; 2. the finding of misconduct was wrong in circumstances where: 1. she had not deliberately chosen not to comply with the Direction as she did not perform duties in contravention of the Direction and she "demonstrated her willingness to comply, by asking appropriate and relevant questions prior to her return to the workplace" - in the words of the applicant: "Asking health and safety related questions does not amount to misconduct"; 2. she only received the Direction after the date upon which she was to receive a first dose of a vaccine; 3. she could not be acting contrary to s 28 of the WHS Act as she was not at work when she was accused of acting contrary to that provision; 1. the respondent had been negligent, intimidating and reckless, by: 1. ignoring her health and safety concerns; 2. "choosing not to engage in debate"; 3. refusing to accept that she was entitled to 'Cease Unsafe Work' pursuant to s 84 of the WHS Act; 4. making false allegations against her; 5. doing all of the above while she was on parental leave caring for her small child; 1. her termination was harsh in circumstances where: 1. she asked reasonable questions to ascertain whether being vaccinated was safe while lactating; 2. she never refused to get vaccinated, she just needed further information to determine if vaccination was appropriate in her personal circumstances, and that she would have applied for an exemption if she determined it was not; 3. having serious misconduct on her employment file will seriously impact any future job prospects and her reputation; 4. she endured an intense 13 week training course to secure her role and at 25 years of age, she was just beginning what she hoped would be a long career in the NSWPF; 5. she was terminated on her birthday; and 6. she has not found suitable employment since her dismissal and comparable employment opportunities, including a flexible work arrangement (FWA), were unlikely to be readily available to her.
The applicant acknowledged in her "Response to Respondent's Submissions and Evidence' that the Direction included notice of the possibility of disciplinary action, albeit that she characterised this as a 'threat' which denied employees a reasonable opportunity to express their views and/or raise work health or safety issues in relation to the issue, for fear of facing disciplinary action.
Lastly, in her written response to the respondent's oral submissions dated 29 November 2023, the applicant repeated a number of her earlier submissions and sought to distinguish cases relied on by the respondent, but also made the following additional points: 1. the respondent was in breach of section 7(b) of the Police Act (NSW), and points 1, 3 and 6 of the NSWPF's Code of Conduct and Ethics in failing to comply with ss 47-48 of the WHS Act; 2. there is no evidence that she has refused to be vaccinated; and 3. the evidence showed, that at the time the mRNA vaccine was released to the public, in January 2021, it had not been tested on lactating mothers, therefore the risk it posed was unknown.
I specifically address the applicant's various submissions under the heading 'Consideration', however I also make various observations and comments which bear upon the applicant's submissions under the headings 'Factual Background' and 'Legal Principles'.

The Evidence and Submissions

The applicant relied upon an affidavit sworn by herself dated 24 May 2022, with annexures, which was admitted without objection, subject to a request by the respondent that I be mindful of those parts of the affidavit which contain opinions, submissions and conclusions. I observed during the hearing that the respondent's statements similarly contained opinions, submissions and conclusions, which counsel for the respondent accepted. While s 163 of the Industrial Relations Act provides that the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers just, I either ignored or gave limited weight to any matter in either party's affidavits what comprised opinion or a submission, where it was relied upon to establish the truth of the matter asserted.
The applicant also tendered a document published by the Australian Department of Health, Therapeutic Goods Administration entitled "Australian Public Assessment Report of BNT162b2 (mRNA) - January 2021" (TGA Report) which was admitted, subject to weight, together with an email chain which commenced with an email from the applicant to Mr Pisanos dated 25 January 2022 and concluded with an email from the applicant to Mr Driver dated 8 February 2022. The TGA Report was a document referred to in a COVID-19 'Frequently Asked Questions' document published by the Workforce Safety Command of the NSWPF on 27 September 2021 (FAQ v 11), which was part of a bundle of documents tendered in evidence by the respondent.
The applicant was cross examined by counsel for the respondent. As I have noted above, the applicant was an extremely effective advocate. She was not however, nearly as impressive as a witness. At various times she was evasive and reluctant to make any concession which she perceived may have been prejudicial to her case. My overall impression of the applicant as a witness was that she was a prevaricator. The applicant assiduously sought to avoid the possibility of being found to have no intention of getting vaccinated, no doubt appreciating that this could be detrimental to her case. To this end the applicant gave answers in cross examination that were equivocal, vague and less than frank. The applicant particularly objected to answering a question as to whether she has now been vaccinated. A considerable amount of time was spent debating the relevance of the question. Ultimately, the question was put and she answered: "Sitting here today, I don't know enough about the COVID-19 vaccination, so no."
The respondent in turn relied upon: 1. a statement of Joselyn Noble, who was the Acting Centre Coordinator at Sydney Radio Operations, NSWPF from 14 December 20220 to 8 November 2021, made on 16 June 2022 and annexed documents; 2. a statement of David Driver, Superintendent of Police, made on 17 June 2022; 3. a statement of Russell Brown, Chief Inspector of Police, who acted in the role of Centre Manager at Sydney Radio Operations from July 2021 to December 2021, made on 16 June 2022; and 4. a bundle of documents regarding the Direction generally.
The bundle of documents tendered by the respondent was admitted into evidence save for the documents behind Tab A and B of the bundle. Each of the respondent's witnesses were cross examined by the applicant. While Chief Inspector Brown demonstrated some frustration during cross examination and at times appeared somewhat condescending toward the applicant during cross examination, generally speaking the respondent's witnesses answered the questions put to them directly and dispassionately.
The applicant had attached to her Unfair Dismissal Application a 'Chronology' and written submissions setting out why she considered her dismissal to be unfair. She also filed a one page 'Short Summary of the Case'.
The respondent filed a written outline of submissions, to which the applicant responded with 7-page document entitled "Applicant's Response to Respondent's Submissions and Evidence".
Both parties made oral opening and closing submissions. I was conscious that the applicant, being self-represented, was somewhat at a disadvantage in responding, on the run, to the respondent's oral closing submissions, which referred to a number of legal decisions. Consequently, I granted leave to the applicant to file and serve a written response to the respondent's oral submissions. The applicant availed herself of that opportunity.
I considered all of the evidence and the oral and written submissions of the parties when making my decision.

Factual Background

The applicant commenced her employment as a radio communications officer with the respondent on 13 January 2020 on a full-time basis. In order to secure the role, she completed a 13-week training course which the applicant described as 'intense'. The Acting Centre Coordinator at the respondent's Sydney radio command centre between December 2020 and November 2021, Ms Jocelyn Noble, agreed in cross examination that the course was difficult to pass. Not only did the applicant pass the course, but she did so ahead of many of her classmates.
The applicant went on maternity leave with pay on 23 August 2020, that is, some seven months after starting her employment with the respondent and gave birth on 18 September 2020. She was on maternity leave without pay from 20 December 2020 and was due back at work on 1 January 2022, that is, over twelve months later.
As is common knowledge, the COVID-19 pandemic took hold in Australia in early 2020. On 26 March 2020, the first Public Health Order (PHO) regarding self-isolation was made in the New South Wales.
According to the evidence of Superintendent David Driver, from March 2020 onwards and throughout the pandemic, thousands of police officers were deployed to enforce PHOs relating to quarantine, isolation and social distancing. Superintendent Driver and his team were in regular contact with various groups within NSW Health, in additional to daily engagement with the NSW Health liaison officers working within the Police Operations Centre.
In or around February 2021, the NSWPF were given priority access to the State-run COVID-19 vaccination program. From that time through until mid-2021, vaccination within the NSWPF became mandatory for those NSWPF officers whose duties related to quarantining of returned travellers and/or persons infected with COVID-19 and their close contacts. Otherwise, vaccination was optional, but strongly encouraged, with all NSWPF members able to attend vaccination appointments during work hours.
According to the evidence of Superintendent Driver, and I accept, members of the NSWPF had and have a high exposure to COVID-19 by the very nature of their role. Police officers provide frontline emergency services, assisting and interacting with members of the community including vulnerable persons. Operational police officers in turn work alongside or interact with other officers and administrative employees (such as the applicant) who attend work in police stations, Command headquarters, or other NSWPF premises.
NSWPF considered COVID-19 to pose a high workplace safety risk to all NSWPF members and, as Superintendent Driver explained, and again I accept, under work health and safety laws NSWPF was obliged to minimise, so far as reasonably practicable, the risk COVID-19 poses both to workers and to members of the NSW community with whom members of the NSWPF interacted on a daily basis. To this end, from February 2021 to September 2021 the respondent sent regular written communications through various communication channels, including the internal 'NEMISIS system' which sends messages to everyone in the NSWPF, including information and fact sheets regarding the vaccines, strongly encouraging members of the NSWPF to become vaccinated against COVID -19 and informing them of arrangements to receive vaccinations.
NSWPF also created a COVID-19 work, health and safety page on the NSWPF intranet, which remains active to this day, and could be accessed by all staff. It included access to FAQs, fact sheets, and resources and information outlining the control measures utilised to help minimise the risk associated with COVID-19. Between 2020 and 2022 NSWPF sent out hundreds of communications to all staff in relation to the pandemic and the control measures implemented by NSWPF.
The evidence shows that from June - August 2021, two inter-related events occurred which were the catalyst for the respondent to mandate vaccination for all NSWPF members (with limited exceptions). First, the highly transmissible Delta variant of SARS-CoV-2 was detected in the NSW community. As a result, the NSW Government introduced the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Delta PHO) which, in brief, meant that from 6 September 2021 only 'authorised workers' (which included members of the NSWPF) could leave an 'area of concern', but only if they had received at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate.
The 'areas of concern' included some eleven local government areas within the Sydney Metropolitan area and consequentially the Delta PHO had a significant impact on NSWPF's operational capabilities, as there were a number of police officers who did not meet the requirements of the Delta PHO. According to Superintendent Driver this "placed the remaining staff of the organisation under greater strain and pressure."
In terms of the risk posed by the Delta outbreak, Superintendent Driver gave evidence that in August 2021, following 20 months without an on duty COVID-19 case of transmission, the NSWPF had two cases of workplace transmission reported in Dubbo. NSWPF went from having no notifiable incidents for approximately 20 months, to at least 15 notifiable incidents between 19 August 2021 and 7 September 2021.
Throughout this period NSWPF continued to monitor and distribute to all members of the NSWPF advice from the Australian Technical Advisory Group on Immunisation (ATAGI). Advices dating from 17 June 2021 to 19 August 2021 were tendered in evidence. The advices include information to the effect that, inter alia: 1. COVID-19 vaccination is very effective in preventing severe disease and death in adults of all ages; 2. the benefits of vaccination with COVID-19 Vaccine AstraZeneca strongly outweigh the risks of adverse effects in those ≥ 60 years and that vaccination is essential for this group in the context of an outbreak; 3. in the context of a COVID-19 outbreak where the supply of Comirnaty (Pfizer) is constrained, adults younger than 60 years old who do not have immediate access to Comirnaty (Pfizer) should re-assess the benefits to them and their contacts from being vaccinated with an alternate vaccine, versus the rare risk of a serious side effect; 4. the benefits to the individual of being vaccinated include avoiding severe COVID-19 outcomes, such as hospitalisation, intensive care unit admission and death, as well as chronic post-COVID-19 conditions ('long COVID'); 5. other benefits of vaccination include reducing the risk of passing the virus to close contacts including family, friends and work colleagues, and the potential to help reduce community spread of the virus; 6. when the virus is spreading in the community it is critical that as many people as possible are vaccinated as quickly as possible; 7. the increased transmissibility of the Delta variant of SARS-CoV-2 makes control of outbreaks using public health measures more difficult and increases the risk of seeding additional COVID-19 outbreaks; 8. there was some evidence to suggest that infection with the Delta variant may be associated with more severe disease, as indicated by hospitalisations, particularly in younger people; 9. evidence suggests that a first dose of a COVID-19 vaccine reduces symptomatic infection and transmissibility, with the protective effect starting to 2- 3 weeks after vaccination; 10. for both vaccines then available (AstraZeneca Zeneca and Pfizer) completion of two doses is required to attain optimal and durable protection from COVID-19 and its complications; and 11. review of data on the efficacy, effectiveness and safety of additional doses of vaccines was currently being undertaken and ATAGI anticipated that additional vaccine doses may be recommended in the future.
In the context of the Delta outbreak and the Delta PHO (which was due to take effect on 6 September 2021), on 5 September 2021, Superintendent Driver and members of the Workforce Safety Command, together with the then NSWPF Chief Medical Officer, Dr William Kirby, conducted two risk assessments: 'Exposure to COVID-19" and "Mandatory Vaccination of workers within the NSWPF" (Vaccination Risk Assessment). The evidence of Superintendent Driver was that by 5 September 2021 COVID-19 vaccinations represented a higher order risk engineering control measure and could be used to minimise the risks associated with COVID-19, beyond any other reasonably practicable measure, such as face masks, physical distancing, personal hygiene and temperature testing.
On 7 September 2021, the respondent, issued the Direction.
According to Superintendent Driver, the implementation of the Direction was as a result of the Vaccination Risk Assessment and "the urgent increase to the safety risk identified". He explained that having regard to that urgent safety risk to both NSWPF and the wider community, NSWPF decided to "implement an expedited consultation process", acknowledging that Part 5 of the WHS Act requires, so far as is reasonably practicable, consultation between management and workers on WHS issues. A copy of NSWPF's consultation procedures were tendered in evidence. In summary, as Superintendent Driver explained, consultation for WHS purposes primarily occurs in four different ways within the NSWPF: 1. direct discussions between individuals during the performance of any task; 2. through discussions between NSWPF representatives and duly elected and trained Health and Safety Representatives (HSRs); 3. through WHS Committees established in accordance with the WHS Act; or 4. "other agreed arrangements" (for example, a management driven WHS Committee where there is little interest by workers to volunteer for committee or HSR positions).
Superintendent Driver explained that an 'expedited consultation process' was implemented with respect to the Direction in light of the fact that: a) the NSWPF has in excess of 200 HSRs spread across NSW; b) after 20 months without workplace transmission, successive positive cases occurred in the workplace which were no longer being managed by lower level risk control measures; c) significant volumes of correspondence had already been made available to all members of the NSWPF with an opportunity to engage with the same (in addition to information circulating in the broader community, for example, through NSW Health daily briefings by Dr Kerry Chant and/or other NSW Health employees); d) an individualised consultation process would be advanced through the exemption application process and considered by an exemption committee chaired by AC Wood; and e) at the start of the pandemic in or around March 2020, the NSWPF set up a help-desk system through a centralised COVID-19 email for receipt of direct feedback from staff in respect of COVID-19 and the safety measures being undertaken. This was partnered with the frequent messages sent out to all NSWPF staff regarding the steps being taken by the NSWPF to manage the COVID-19 safety risk.
As at 7 September 2021, approximately 79% of NSWPF members had received their first dose of a COVID-19 vaccine and over 70% of the NSWPF workforce had already been fully vaccinated against COVID-19.
On 8 September 2021, the current Commissioner, then Deputy Commissioner, Karen Webb, received a letter from the PANSW which asked a series of questions regarding the Direction. Notably the letter included the following: As you are aware the Police Association of NSW (PANSW) Executive supported a general requirement that all police employees be vaccinated (provided there were appropriate exemptions to accommodate medical or other individual circumstances), in the interests of protecting the health and safety of our members. … The Work Health and Safety Consultative Committee was never consulted about any mandatory requirement for police to be vaccinated, and no risk assessment on the deployment of a mandatory vaccination requirement has been shared with that Committee or the PANSW generally. Please urgently provide a copy of: (a) Any risk assessment considered in the Commissioner's decision to implement mandatory vaccination for all police officers; and (b) Any report or other information considered by the Commissioner, explaining the efficacy of vaccination in reducing transmission within the workplace.
On 10 September 2021, Deputy Commissioner Webb provided a detailed response to the PANSW. Relevantly for present purposes the letter included the following: 4. Will pregnant officers or officers undertaking fertility treatment be required to obtain a medical contraindication certificate or will NSWPF accept those reasons contained within a report outlining it as a 'valid reason'? This will depend on their individual circumstances. Given there are vaccination options for officers who are or intend to be pregnant, they remain captured by the Commissioner's direction. Officers in these circumstances may apply through chain of command to the ACHR for consideration of their individual circumstances. For example: a pregnant officer seeks to defer vaccination until post birth and indicates an intention to obtain vaccination at that time, this may be considered a valid reason. … 6. How is the Direction to be applied to officers who are currently on approved forms of leave (unrelated to the vaccination issue) such as maternity leave, absent from work on worker (sic) compensation, long service leave, leave without pay, on secondment working outside the NSWPF, and who are not required in the workplace until sometime after 30 September 2021? Is it sufficient for them to have the vaccination and supply relevant evidence prior to their anticipated return date rather than 30 September? Will it be communicated to those officers that the direction deadline of 30 September 2021 will not apply? All officers on approved forms of leave are captured by the Commissioner's direction, noting vaccination has been readily available to officers since March 2021. The only exemption to this will be officers who are medically certified as not to return to NSWPF in any capacity. This is being reviewed by Workforce Safety and these will be considered collectively. All other officers out of the workplace will be contacted by their Command notifying them of the Commissioner's direction. In circumstances where the officer seeks to defer vaccination until their return to the workplace, they may apply through chain of command to the ACHR for consideration of their individual circumstances. In cases where the officer has confirmed they agree to be vaccinated prior to their return, the officer must present a vaccination certificate on their return [to] the workplace. … 9. The concluding paragraph of the information surrounding the Direction on the intranet states "Failure of a NSWPF member to comply with this direction will ultimately result in management action". What does "management action" mean in this context? For a small minority who (sic) of officers who do not comply with the direction, the NSWPF will undertake the normal Command based discussions with the officer as to the reasons they cannot comply, with the welfare support where relevant. These will then be considered on a case by case basis, as there are a number of acceptable reasons as to why the officer may not be able to comply with the deadline, such as the example where the officer has had COVID and is precluded from vaccination in the short term. In other cases, managerial action may entail management of the health safety risk in the workplace, to manage a safety risk to that officer, their colleagues and the public. As in all cases, management action, in the terms of reviewable action will only considered where misconduct is found including disobeying of a reasonable direction without a lawful reason. Any management action will, of course, be conducted reasonably. 10. What process does the NSWPF intend to follow for those officers who indicate they simply refuse to obtain a vaccination (prior to 30 September 2021 or at any time)? To manage the safety risks, the individual will be required to absent themselves from the workplace utilising their own accrued recreation/extended leave while their circumstances are considered. It is not possible to provide a standard process in this regard as the NSW Police Force is attempting to take into account the individual circumstances of each matter. However, any management action will be conducted reasonably and the NSWPF anticipates will be unnecessary given the overarching desire of all parties to ensure the safety of themselves and their colleagues most cases will not progress to this stage. 11. Will the Commissioner seek to terminate officers pursuant to Section 181 D of the Police Act 1990 who are not vaccinated by the 30 September? Termination under s 181D Police Act 1990 (NSW) will only be considered in circumstances where individuals who disobey directions, absent valid medical/religious reason or other approved exempt reason, to be vaccinated. For those that cannot be vaccinated due to medical/religious reason or other approved exempt reason, should reasonable adjustments not be appropriate for the individual circumstances then removal under ss 181D or 94B may be a possible outcome, however we emphasise our commitment where reasonably practicable to resolve these matters without recourse to formal procedures. Importantly, the NSWPF has not automatically mandated removal as the intention is to work with individuals wherever reasonably practicable to consider their individual circumstances prior to consideration for removal. However, the NSWPF is clear that vaccinations are required and unfortunately, regardless of steps taken, removal may be a possibility. 12. Will NSWPF suspend all officers who disobey the direction? The intention is while the circumstances of an individual who is unable to comply with the direction are considered they will utilise their own recreation/extended leave. We anticipate that most individual cases will be resolved through the Command. Suspension is an option considered on a case by case basis in accordance with the applicable policy however only becomes relevant where there is a breach of a direction. Regarding the WH&S committee, I understand the most recent meeting proceeded with those able to attend on the day. The NSWPF is available to hold an extraordinary WH&S Committee meeting to discuss the risk assessment process and considerations with the PANSW. Please contact the WH&S Committee chair, Superintendent David Driver to arrange this meeting.
The applicant is not and is not eligible to be, a member of the PANSW and there is no evidence that she saw this letter at any time prior to her dismissal. Nor is she subject to s 181D of the Police Act. Nevertheless, the letter provides some helpful insight both as to how the respondent intended to enforce the Direction and provides evidence as to the attitude of the union representing the majority of NSWPF employees and the steps that were taken by both the respondent and the union after the issue of the Direction, but before the deadline for compliance of 30 September 2021. The relevance of this will become apparent below.
On 25 September 2021 the Deputy Commissioner Webb sent out a reminder message (which was dated 24 September 2021) to employees regarding the need to comply with the Direction and which included the following information: If you decline to comply with the Commissioners (sic) Direction you will: (a) not be permitted to perform duties; (b) be required to take a form of your leave, the type being determined by your Commander/Manager; and (c) be subject to disciplinary action.
On 28 September 20231, an extraordinary meeting was held via Microsoft Teams of the Workplace Health and Safety Consultative Committee (Committee) involving the PANSW and the PSA, being the unions with industrial coverage of NSWPF members, the PSA being the union entitled to represent the applicant. During the meeting the Vaccination Risk Assessment was presented electronically to those in attendance by Dr Brett Carroll from the Workforce Safety Command.
On 15 October 2021, AC Wood wrote to the PANSW and PSA respectively, inviting them to attend the Sydney Police Centre on 28 October 2021 for a further Committee meeting, where the hard copy risk assessments would be provided. The Committee duly met on 28 October 2021, although representatives of the PSA did not attend, and a copy of the Vaccination Risk Assessment was provided to the PANSW.
On 18 October 2021 the applicant, who was still on unpaid maternity leave, received an email from Ms Noble attaching a letter dated 28 September 2021 from Acting Superintendent Jill Walters, Commander, Radio Operations Group. I accept that this was the first time the applicant became aware of the Direction, although the respondent maintained a copy of the Direction had been mailed to the applicant earlier. The letter from Acting Superintendent Walters included the following: On Tuesday September 7, 2021 the Commissioner of Police issued a Direction regarding mandatory vaccinations for all NSW Police Force members. This Direction applies to police officers and administrative employees (collectively "members") who are not currently in the workplace. Simply put, all members have been directed to be vaccinated against Covid-19 and to receive at least one dose of COVID-19 vaccination by 30 September 2021 and two doses by 30 November 2021. The only exceptions to this requirement are for medical reasons where a medical contraindication certificate is provided in the form approved by NSW Health, or otherwise at the absolute discretion of the Commissioner of Police. If you have been vaccinated for COVID-19 and have not ready done so, could you please advise and provide a copy of your immunisation statement or COVID-19 certificate. This can be emailed direct to A/Centre Coordinator Jocelyn Noble at nobl1joc@police.nsw.gov.au. Your medical information will be protected as health information. Alternatively, if you believe an exception applies to the requirement for you to be vaccinated (as set out in the Direction) please let the Centre Manager know and they can let you know what further information is required in support. Planning ahead would be of benefit to allowing for a smoother transition from your absence back at the workplace.
Around 25 minutes after sending the first email, Ms Noble sent a further email to the applicant attaching a copy of the Direction and setting out in the body of her email, a 'Nemesis Message that was emailed to all NSWPF Employees on 7th September 2021" which was signed off by Deputy Commissioner Karen Webb and was in the following terms: "We have seen the numbers of cases of the delta strain of COVID-19 dramatically increase recently - in NSW, across Australia and internationally. The risk of transmission of this very contagious strain remains high, particularly for frontline officers. The consequences of exposure to the virus is significant for everyone. Given the current circumstances, all NSW Police Force employees will now be required to be vaccinated for COVID-19. This requirement will be managed in a staged approach with the following rules: ● All NSW Police Force employees must have received at least 1 dose of a COVID-19 vaccine by 30 September 2021. ● All NSW Police Force employees must have received a least 2 doses of a COVID-19 vaccination by 30 November 2021. ● Evidence of vaccination will need to be provided and recorded on NSW Police Force systems for the purpose of deployment, welfare and safety management. I want to commend the more than 17,000 employees who have already been fully or partially vaccinated. For those yet to be vaccinated, I encourage you to book your appointment at the earliest opportunity. This can be done by following the below link: https://www/service/nsw.gov.au/transaction/book-covid-vaccination There is only one way to manage this virus in the workplace and that is to ensure more COVID-19 vaccines are administered. If you have a specific reason not be vaccinated, exemptions are in place for medical contraindications and other valid reasons. More information for employees, managers and commanders is available on Hot Topics (https://intranet.police.nsw.gov.au/events/mandatory_vaccination_for_all_police_employees ), the HR section of intranet which contains up to date FAQs and Factsheets. Further advice is also available form Workforce Safety Command on E/N 53899 or Workforce Advisory on E/N 29508. I thank you all for your continued efforts as leaders in the community to help us all get through this very challenging time. Deputy Commissioner Karen Webb APM Corporate Services
After setting out the above, Ms Noble's email finished with the following paragraph: This mandate applies to all employees regardless of them being currently in the workplace or on any form of leave. Please get in contact with myself of Mr Brown ASAP to advise us of your vaccination status or your intentions regarding this direction.
As recorded above, the applicant submitted that she had not deliberately chosen not to comply with the Direction as she did not perform duties in contravention of the Direction (and "demonstrated her willingness to comply by asking appropriate and relevant questions"). I accept that she did not perform duties after the stipulated deadlines. I also accept that paragraph 1 of the Direction did not, in terms, require NSWPF employees to be vaccinated, but rather, directed that they not perform duties after the stipulated dates unless they had received the required number of doses of a COVID-19 vaccine. However, the penultimate paragraph of the Direction indicates that employees were required to receive a double dose of the vaccine as it refers to "an individual asserting an inability to comply with direction 1 for a medical reason". Plainly an unvaccinated individual would never have an 'inability to comply' with a requirement not to perform duties. They would simply not report to duty and thereby be compliant with the Direction. The phrase only makes sense if the Direction, taken as a whole, was a direction to be double vaccinated, absent a medical contraindication or an exemption.
The letter from Acting Superintendent Walters dated 28 September 2021 and the Nemesis Message of 7 September 2021 from Deputy Commissioner Webb, either makes this abundantly clear, or stand alone as their own directions to the applicant to be double vaccinated. Both documents also contain a direction that evidence of vaccination was to be provided or a request for an exemption made. Ms Noble also specifically required the applicant to advise her vaccination status or her intentions regarding the Direction. The applicant did neither of these two things.
In my view the Direction alone, or with the additional directions of Acting Superintendent Walters and Deputy Commissioner Webb, required employees of the NSWPF to be double vaccinated, and to provide evidence of such vaccination, or to submit a medical contraindication certificate, or apply for an exemption from the requirement to be vaccinated which would only be granted in the Commissioner's absolute discretion. I note that this was the view taken of the Direction by Commissioner O'Sullivan in Welch v Commissioner of Police [2023] NSWIRComm 1002 at [15], [65] - [69]. The Direction made clear that management action could ultimately result if a NSWPF member failed to comply with the Direction. I am satisfied, as was Commissioner O'Sullivan in respect of Mr Welsh, that the applicant knew that the Direction required her to be vaccinated and that management action including disciplinary action was likely to be taken if she did not comply.
It is agreed that the applicant did not receive a copy of the Deputy Commissioner's reminder message of 25 September 2021 nevertheless, that message further reinforced that the Direction required NSWPF members be double vaccinated, or provide a medical contraindication certificate or apply for and obtain an exemption and that if they did not, they would not be permitted to perform duties, would be required to take leave and be subject to disciplinary action.
On 19 October 2021 the applicant sent an email to Ms Noble and Chief Inspector Russell Brown, the State coordinator within the Radio Operations Group. The email read as follows: Thanks for sending through some more info, including the Direction. I have some questions I'd like to ask, so I can be fully informed for my decision making process: ● How effective is the vaccine in preventing transmission? ● Can you please advise me of the approved TGA status of any vaccine and if it is experimental? ● Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests? I am particularly interested in pregnant and lactating women control groups. ● Can you please provide the sections or regulations under WHS laws that specifically refer to medical interventions as acceptable and/or reasonably practicable measures? ● Can you provide an explanation of why someone currently in the workplace would need to be subjected to WHS rules? ● Can you please send me the risk-based assessment that was used to determine this Direction? ● As Radio Comms Officers don't interact face-to-face with the public, what is the risk of exposure and transmission of COVID-19 in the workplace? I certainly have more questions, but I will begin with these. I appreciate any time take and respond my questions, so that you can assist me in my informed consent to taking this injection.
It is convenient to note at this juncture, that despite admitting in cross examination that she had the ability to consult with a general practitioner, the applicant at no time prior to her termination, or it seems after, asked a medical practitioner the first three of the above questions. This is a matter to which I will return below, however that fact has had a significant bearing on my decision. In short, it has led me to the firm view that the applicant had and has, no intention of getting vaccinated and, as I explain further below, the respondent was entitled to regard the applicant's communication of 19 October 2021 and subsequent communication, as a refusal to be vaccinated.
Chief Inspector Brown responded to the applicant's email on 20 October 2021 in the following terms: Your email is received and further assessment will be made of its contents in due course. As per the email sent to you on 13 October by Jocelyn Noble (and you haven't provided us with your Immunisation History Statement/Proof of Vaccination or a Contraindication Certificate), your matter will now be referred to the NSWPF Administrative Officers Conduct Unit for further assessment.
The applicant responded by email dated 22 October 2021 as follows: The Direction was sent on 17th October and you referred me to the NSWPF Administrative Officers Conduct Unit 3 days later. I do not believe that is sufficient time for me to respond to the Direction. As stated, I need to know more information before I can proceed. The risks and benefits need to be taken into consideration for my individual circumstances. On top of that, may I point out that section 3(b) of the Direction allows for an exemption other than a contraindication certificate. So you have referred my matter to the conduct unit based on not providing "Immunisation History Statement/Proof of Vaccination or a Contraindication Certificate", but Section 3(b) allows for another option, to which you have not allowed me the sufficient time and information necessary to apply for. I politely requested I receive answers to the questions in my previous email, in particular the risk assessment, as soon as possible. I am trying to comply with this hurried deadline and would like to meaningfully engage with this issue.
I note that at this juncture that it was agreed between the parties that the applicant had her computer system set to an incorrect date and time, such that some of the emails she tendered in evidence bore an incorrect date and time stamp. In this decision I have used the dates and times the parties agreed were the correct dates and times. It was agreed that the Direction was sent to the applicant by an email sent by Ms Noble on 18 October 2021, not 13 or 17 October 2021.
At no time did the applicant make an application for an exemption or ask that she be permitted to defer her vaccination until her return to work or some other appropriate time.
Chief Inspector Russell and the applicant corresponded briefly again on 26 and 27 October 2021, principally regarding the date on which she first became aware of the Direction. Then, on 11 November 2021, Chief Inspector Russell sent an email to the applicant, copying in Ms Noble and someone called Stuart Posner of the NSWPF stating: I refer to your email of 19 October 2021 and: ● attach NSWPF's fact sheet regarding the COVID-19 vaccine. NSWPF will not respond to further correspondence on these issues at this time. NSWPF employees who remain non-compliant with the Commissioner's Vaccination mandate without a valid exemption will be referred to PSC for appropriate action. I confirm that you are now due back to the workplace on 1 January 2022 and are required to provide proof of vaccination before your return.
The fact sheet attached to the email was the FAQ v 11 referred to in paragraph [12] above. Notably it included the following information, which at least partially addressed some of the questions the applicant had asked in her correspondence of 19 October 2021, in particular those directed to the safety and efficacy of the vaccines: 1.7 Am I immune after receiving my COVID-19 vaccination? Trials have shown COVID-19 vaccines have high levels of efficacy, however like other vaccinations, COVID-19 vaccines may not provide 100% protection. The current health advice is to receive two doses of the same vaccine. You may not get the full benefit of the vaccine against COVID-19 until seven days after the second dose. You must continue to comply with the existing safety protocols such as the use of PPE, physical distancing and hand hygiene. 1.8 Has the vaccination been adequately tested? All vaccines used in Australia are thoroughly tested for safety before they are approved. It is important to note that you cannot get COVID-19 from a vaccine. The vaccine would contain proteins or other biological substances to stimulate the immune response, but not the coronavirus itself. Every vaccine given to Australians must pass all three scientific testing phases before it is registered for use by the Therapeutic Goods Administration (TGA). Visit COVID-19 vaccine approval process for more information. Further information on vaccine safety can be found in the following resources: ● Questions about vaccine ● The Science of Immunisation: Questions and Answers ● The Australian Immunisation Handbook 10th Edition (for health professionals) While COVID-19 vaccines have been developed more quickly than usual, safety has not been compromised. In this case, the timeline was shortened without sacrificing quality by: ● Combining phase I with phase II trials - Since phase I studies include a small number of people and evaluate whether the candidate vaccine causes an immune response and is safe, scientists could look at data from a group of people as phase II was progressing to make these evaluations. ● Manufacturing "at risk" - While completing the large phase III clinical trials, manufacturers began producing the vaccine, so that if it was shown to be safe and effective, they would have large numbers of doses ready. The reason this is not typically the approach is because if the vaccine does not work, the manufacturer will have spent a significant amount of money to produce something that needs to be thrown away. 1.9 Are there any known side effects or long-term issues from the vaccine given the speed at which it has been developed? It is not uncommon to have certain reactions after vaccination. Like some other medicines, vaccines can cause side-effects, such as a low-grade fever, or pain or redness at the injection site, muscle aches, fatigue and headaches. Mild reactions go away within a few days on their own and severe or long-lasting side-effects are rare. Vaccines are continually monitored for safety, to detect and record adverse events. Persons with existing or known medical conditions must disclose this information prior to receiving the vaccine. … 1.16 I'm pregnant - is the vaccine okay for me and my baby? On 9 June 2021, the Royal Australian & New Zealand College of Obstetricians & Gynaecologists (RANZCOG) and the ATAGI recommended that pregnant women can be offered the Pfizer vaccine at any stage of pregnancy. Officers / workers who are pregnant are encouraged to obtain medical advice from treating physicians prior to getting vaccinated against the COVID-19 virus. The advice in the joint statement from RANZCOG and ATAGI is that women who are trying to become pregnant do not need to delay vaccination or avoid becoming pregnant after vaccination. 1.25 Where can I find more information on the COVID-19 vaccination program? Officers / workers can call the COVID-19 vaccination program hotline on 1800 955 566 between 8am- 9.30pm, 7 days a week.
As noted above, the TGA Report was also referred to in the FAQ v 11. Indeed, it included a hyper-link to the report. The applicant in submissions referred to the fact that this report, which relates to the Pfizer mRNA vaccine, contains the following statement: Data Limitations In addition to the unknown longer term safety and unknown duration of vaccine protection, there are other limitations with the submitted data. The following questions have not yet been addressed: … ● Vaccine data in pregnant women and lactating mothers.
The applicant in her written response to the respondent's oral submissions submitted that, by virtue of the above statement, set out in a document "provided by [her] employers in the Fact Sheet", it could be said that the vaccine was experimental. From this I conclude that the applicant was given information by her employer, on or about 11 November 2021, from which she was able to determine that, in her view, the Pfizer vaccine was experimental.
Despite receiving and reading the FAQ v 11, and through it having access to considerable additional information about the COVID-19 vaccines, at no time did the applicant seek out medical advice from her treating physician regarding the risks to her or her breast fed baby, and there is no evidence that she called the COVID-19 vaccination program hotline. As noted above, the applicant did not apply for an exemption from the need to comply with the Direction or ask that her vaccination be deferred to a time more proximate to her return to work, or to a time after the weaning of her child, or to allow her to obtain medical advice. Nor did she advise the respondent that had decided not to be vaccinated on the basis that she regarded the vaccine as experimental, or on any other basis.
The applicant responded to Chief Inspector Russell on 19 November 2021, as follows: Thanks for sending me a basic fact sheet regarding the COVID-19 vaccine. If anything, the lack of transparency in this fact sheet has raised even more questions. I am concerned with your statement that "NSWPF will not respond further correspondence on these issues at this time." Could you clarify what you mean by "these issues"? Am I understanding it correctly that NSWPF is purporting to mandate provisionally approved covid vaccines and yet does not wish to fully inform and correspond with the recipients of this medicine? I find this highly alarming and distressing. I urgently seek NSWPF to respond to my questions in detail. I am also confused as to why you mention 'employees who remain non-compliant … will be referred to PSC for appropriate action.' Are the AOCU and PSC two different departments? How many departments will one be referred to? This feels like coercive behaviour to me and is affecting my decision-making process. I remind you that I'm trying to comply with this rush deadline, and I require detailed responses to my questions so that I may make a fully informed decision regarding medical treatment. I repeat my questions below: [The questions as set out in the applicant's email of 19 October 2021 were repeated.] I also have a further request in regards to privacy, as I can see that another staff member has been added to this email chain. ● Please clearly explain how NSWPF is complying with the Privacy Act in NSW as well as complying IN FULL with the Commonwealth Privacy Act and related regulations designed to protect and preserve an employee's privacy and safety from the mis-acquisition, mishandling and misuse of highly personal medical and health related information. Again, I am patiently waiting the answers to my questions so as to make an informed decision on the situation.
Chief Inspector Brown responded on 23 November 2021 stating that he was seeking advice on some of the applicant's queries and would respond accordingly in due course. His further response came on 2 December 2021 which relevantly stated: … The questions that you have been asking are largely medical in nature and I reiterate that all medical queries should be directed to your medical practitioner. The explanatory material provided by the Commissioner in conjunction with his direction, sets out clearly the WHS legal obligations and considerations made by the Commissioner in issuing the direction. WHS obligations apply regardless of whether an employee is working in the workplace or at home. As stated in the direction, the risk minimisation strategies including minimising the risk of transmission between members of the NSWPF and other agencies with whom the NSWPF regularly work. It is therefore immaterial that you have been working from home and/or that your position may not work closely with members of the public. In relation to privacy, I confirm COVID-19 vaccination status collection adheres with obligations under Health Privacy Principles and WHS law. I note that you have not submitted any exemption request pursuant to paragraph 3 of the direction. Nor have you provided evidence that you have received one, or both, dose(s) of a COVID-19 vaccine. As such, you are in contravention of the Commissioner' direction, and management action against you is being considered. You will have a further opportunity to respond as part of the show cause process. NSWPF will not respond to further correspondence on these issues until that time.
I pause to observe that the applicant was not working from home at this time and was not working in the workplace. With respect, I agree with the applicant that at this time and for the period of her maternity leave, the obligations imposed on the respondent, and on her, under the WHS Act, had no application. While the applicant had failed to provide her vaccination status, in circumstances where she had been asked to provide it, it is doubtful whether she was obliged to comply with the request to provide such information or indeed to become vaccinated at this time (assuming the Direction was otherwise lawful and reasonable), as she was on leave and not scheduled to return to work until 1 January 2022.
However, as Deputy Commissioner Webb's letter to the PANSW of 8 September 2021 indicates, (perhaps recognising the difficulty of directing employees to do something at a time when they are not required for duty) it was open for members of the NSWPF who were on leave on and after 30 September 2021, to apply to defer vaccination until their return to the workplace. The applicant did not do this, but more importantly, the applicant did two things which ultimately resulted in her dismissal - for failure to comply with a lawful and reasonable direction (as I explain below) - being justified.
First, after receiving information from the respondent on or about 11 November 2021 which substantively responded to her questions regarding the safety and efficacy of the vaccines, the applicant chose to further correspond with the respondent, by her email of 19 November 2021, not by saying she would get vaccinated or even by saying (given her concerns about the lack of data regarding lactating mothers as detailed in information given to her) that she would not get vaccinated, or by requesting an exemption from or deferral of her vaccination, but instead by continuing to demand that her questions be responded to 'in detail'. In the circumstances I conclude that the ongoing questioning of the respondent was a ruse, designed to avoid or at least delay, the ramifications of non-compliance with the Direction. I am fortified in that view by the failure of the applicant to ask any questions as to the safety and efficacy of the vaccines of a medical practitioner, who plainly would be better placed than her employer, to provide the answers the applicant supposedly desired in order to make an informed decision as to whether to be vaccinated.
While I have some misgivings as to whether the applicant was required to comply with the Direction prior to her scheduled return to work and hence whether she was obliged to respond at all to the respondent's requests that she provide evidence of her vaccination status, the fact is she did respond, without giving any indication that she would comply with the Direction before returning to work. It was reasonable, given the tone and content of the applicant's correspondence for the respondent to conclude, in and around late 2021, that the applicant was refusing to be vaccinated.
Secondly, and most importantly, the applicant continued to be non-compliant with the Direction at a point in time when she was expected to report for duty, that is, at a point in time when she was obliged to comply with the Direction (assuming it was otherwise lawful and reasonable, which I discuss below).
On 6 December 2021 the applicant received an email from Ms Brown attaching an unsigned letter dated 1 December 2021 from SJ Newton, Management, AOCU, Professional Standards Command (PSC) advising that there appeared to be reasonable grounds on which to conclude that the applicant had deliberately chosen not to comply with the Direction and the direction of the Deputy Commissioner Webb issued on 25 September 2021 and inviting her to provide a statement in relation to the allegations. The letter, colloquially referred to as a 'show cause letter', alleged that the applicant appeared to have: ● failed to receive one [or both] dose(s) of a COVID-19 vaccine within the specified timeframe; and ● failed to provide evidence of [her] vaccination status.
The letter stated that: In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to ss7(a) (d) & (e) of the Police Act 1990, s 28 of the Work Health and Safety Act 2011 and Points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics.
The letter advised of the possible disciplinary sanctions that the Commissioner could impose under s 69(4) of the Government Sector Employment Act 2013 (NSW), including termination of her employment.
The applicant provided her response to the letter on 29 December 2021. I will not set out the substance of that response as it is reflected in the applicant's contentions and submissions made in these proceedings. It suffices to note that the applicant submitted that she had "attempted to comply with the Commissioner's Direction by seeking further information and evidence [from NSWPF] before accepting the offer of vaccination, to which the NSWPF have deliberately ignored and instead continually threaten me with management action."
Earlier, on 22 December 2021, the applicant had emailed Ms Noble inquiring whether her return to work on 1 January 2022 had been organised. On 24 December 2021 the relieving manager, Aileen Magurren, emailed the applicant requesting she provide evidence of both doses of COVID-19 vaccination "as the first step in your returning to work."
On 26 December 2021 the applicant replied by asking: 'Could you please send me my roster?" This was met with a response from Ms Magurren on the same day stating: "Happy to provide you with your roster when you have provided prof (sic) of vaccination."
The following day the applicant emailed Ms Magurren asking: "Is it a condition of my employment to provide proof of vaccination?", to which Ms Magurren replied: It is a requirement of NSWPF for you to produce your COVID-19 vaccination records prior to your return to the workplace, as the Commissioner has deemed it necessary to mandate COVID-19 vaccinations for all NSWP Police officers and employees (unless medically exempt).
Notably, on 4 January 2022, Ms Magurren emailed the applicant her roster as had been requested. She also reminded the applicant of the need to produce her COVID-19 vaccination records prior to her return to the workplace as "[y]ou cannot enter any Police premises, including your workplace, without have produced these." I accept that this evinced an intention on the part of the respondent to allow the applicant to return to work, despite the fact that she technically had breached the Direction (assuming it applied to her while she was on leave) by not being vaccinated by 30 September 2021 (noting that she had not received notice of the Direction by that date), provided she was fully vaccinated and provided proof of her vaccination, prior to her first shift, which was scheduled for 6 January 2022.
On 5 January 2022 the applicant emailed Ms Magurren as follows: Thank you for sending me my roster as requested. Firstly, however, this roster does not reflect the FWA [flexible work arrangement/agreement] I had with Mr Brown, which is two shifts per week (Sat & Sun). Secondly, I am concerned that my private medical information is being collected contrary to Privacy Laws. As it stands, I am unable to fulfil the requirement of NSWPF due to: 1. Not having any reliable, accurate or evidence based information to support the Commissioner's Direction to receive medical treatment. I have asked on numerous occasions for the NSWPF to supply this information, to no avail. I am, however, willing and able to work despite this requirement imposed upon me unreasonably. There, I request that my roster be updated to reflect my FWA and I'm happy to return to work as contracted.
Ms Magurren responded on 5 January 2022 informing the applicant that her FWA had expired and she would need to apply for a new one, and again requesting the applicant to supply her vaccination records prior to her return to the workplace. The applicant's response sent later that day was as follows: Am I understanding this correctly? Are you deliberately ignoring my concerns in regard to this medical treatment by continually asking the impossible from me? This is a genuine cause for concern and be reassured this is not vexatious or frivolous in any way. I am trying to comply with this Direction by engaging in a meaningful consultation, so that that I can return to work on time and fulfil my duties. Please assist me in my efforts to gather the relevant information necessary in order to comply.
In my opinion, given the applicant's maternity leave had ended on or about 31 December 2021 and her first shift was scheduled on 6 January 2022, as at 5 January 2022, the applicant had unarguably contravened the Direction.
Some further emails between the applicant and Ms Magurren ensued which included an allegation by the applicant, made on 9 January 2022, that in circumstances where her concerns were not being taken seriously by her manager, she felt unsafe about returning to work and purporting to exercise her right under s 84 of the Work Health and Safety Act, to cease unsafe work. The applicant's letter to Ms Magurren of 9 January 2022, contained the following statements: … The chosen control measure (PA [provisionally approved] Vaccines) has known and documented risks to health and safety that include but are not limited to death, disability, and permanent and temporary illness and injury. Most concerning to my individual circumstances is that no data addressing the safety of the vaccine in lactating mothers currently exists. I am still breastfeeding my child and will continue to do so into the foreseeable future. The control measure set out by NSWPF puts myself and my child at risk. … The reckless and negligent behaviour from management by choosing not to respond to my genuine concerns directly exposes me to a risk of harm and injury, both physically and psychologically. I am unable to fulfil the requirement set out by the NSWPF to receive a (PA Vaccine) due to the lack of safety information provided by my employers. Therefore, it is not a personal act or omission of safety to refuse to work in a role that would place myself at risk of sustaining a vaccine injury, as a real result of known outcomes for people who have taken the (PA Vaccines). It is not a reasonable direction or instruction to intentionally expose me and, consequently my baby, to the risk of (PA Vaccines) when there is a risk of death and serious injury/illness associated with the engineered control device (PA Vaccines) stipulated by the company as mandated. It is not a reasonable exercise of duty of care to intentionally ignore my questions and concerns raised numerous times via email to multiple managers, including yourself. I therefore immediately declare my right under section 84 of the WHS Act 2011 to cease work. I refuse to carry out the work not because of my fitness for work but due to the negligence and reckless behaviour of management in response to my genuine health and safety concerns, putting me at risk of serious injury, illness or death. I do this noting I have a reasonable concern that to carry out the work by getting the (PA Vaccines) would expose me to a serious risk to my own health or safety. For clarity, by establishing and mandating the control measure (PA Vaccines) for my role, NSW Police Force has created an imminent exposure to a known hazard that cannot be removed once implemented. Under section 86, I am accordingly notifying you, Ms Magurren, as soon as practicable notifying on behalf of the Person Conducting a Business or Undertaking (sic), that I have now ceased work effective as of 6th January 2022. In accordance with the requirements of The Act, I remain ready, willing and able to carry out suitable alternative work that does not put me at risk from the hazard that NSW Police Force has created by mandating (PA Vaccines) for my current role.
By her letter of 9 January 2022 the applicant had disclosed to the respondent that she considered that receiving a vaccine would put her 'at risk of serious illness or death' and that she therefore would not be receiving the vaccine.
On 10 January 2022 Ms Magurren sent an email to the applicant attaching a letter dated 31 December 2021 from Paul Pisanos of PSC, headed "Finding of Misconduct and Proposed Management Action." The letter relevantly stated: I find that you have deliberately chosen not to comply with the Commissioner's direction dated 7 September 2021 and the direction of Deputy Commissioner Webb APM issued on 25 September 2021. In particular, you have: ● failed to receive one [or both] dose(s) of a COVID-19 vaccine within the specified timeframe; and ● failed to provide evidence of your vaccination status. In the circumstances, I conclude that your conduct was contrary to ss 7(a), (d) & (e) of the Police Act 1990, s 28 of the Work Health and Safety Act 2011(WHS Act) and Points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics. … Proposed Action Based on my finding and the serious nature of your misconduct, I hereby give you notice that I intend to take the following action in accordance with s 81E (1)(h) of the Police Act 1990 in conjunction with s 69(4)(b) of the Government Sector Employment Act 2013. ● Termination of your employment (after giving you the opportunity to resign). In addition, and in the alternative, I hereby give you notice that your employment with the NSW Police Force may be terminated under S 81E(1)(f) of the Police Act 1990 on the basis you have refused to perform the duties you have been assigned. In accordance with rr 39 and 46(2) of the Government Sector Employment (NSW Police Force) Rules 2017, I am now giving you a reasonable opportunity to make submissions in relation to the proposed actions. ….
There are two aspects of Mr Pisanos' letter that trouble me.
The first issue is the date of the letter, 31 December 2021. While the applicant had failed to provide her vaccination status, in circumstances where she had been asked to provide it, it is doubtful whether she was obliged to comply with the request or indeed to become vaccinated prior to 1 January 2022, or some time shortly beforehand, (assuming the Direction was otherwise lawful and reasonable), as she was on leave and not scheduled to return to work until then.
That said, as I observed above, the applicant had chosen to correspond with representatives of the respondent in a fashion which I consider entitled to the respondent to conclude, on or before 31 December 2021, that the applicant did not intend to get vaccinated or otherwise comply with the Direction.
If I am wrong about that, in my view the applicant was in any event obliged, on or about 24 December 2021, being a little over a week from her scheduled return to work, or at the very latest 5 January 2023, to comply with the Direction, yet she failed to comply with the Direction by her first scheduled shift on 6 January 2022. Such conduct was intentional and therefore deliberate, albeit that by the applicant's own lights, she had good cause not to comply. I do not accept the applicant's argument that asking questions about the vaccines constituted compliance with the Direction. Thus, while Mr Pisanos' letter was perhaps premature when it was written, it was not premature when it was sent.
The second issue with Mr Pisanos' letter is the assertion that the applicant's conduct was contrary to ss 7(a), (d) & (e) of the Police Act 1990, s 28 of the WHS Act and Points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics.
Section 7 of the Police Act 1990 provides as follows: Each member of the NSW Police Force is to act in a manner which-- (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly.
I accept that the applicant was a member of the NSWPF as defined in s 3 of the Police Act, however It is entirely unclear to me how the applicant's failure to follow the Direction is a breach of any of the provisions of s 7 of the Police Act and the respondent made no submissions to explain this view. I consider that Mr Pisanos was wrong to conclude that the applicant's conduct was in breach of s 7 of the Police Act.
Section 28 of the WHS Act provides as follows: While at work, a worker must-- (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
As I have already recorded, I agree with the applicant that she could only be in breach of s 28 if she was 'at work'. At no relevant time was the applicant 'at work'. However, if a person does not engage in the conduct prescribed in sub-sections (a) - (d), to the extent that required them to do things while not at work (e.g. be vaccinated), if and when they attended work, they would be in breach of s 28. Nevertheless, I have doubts that the applicant actually breached s 28 in circumstances where she did not, at any relevant time, attend work.
The NSW Police Force Code of Conduct and Ethics provides as follows: An employee of the NSW Police Force must: 1. behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty 2. act with care and diligence when on duty 3. know and comply with all policies, procedures and guidelines that relate to their duties 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction 6. comply with the law whether on or off duty. 7. take reasonable steps to avoid conflicts of interest, report those that can not be avoided, and co-operate in their management 8. only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy 9. not make improper use of their position or NSW Police Force information or resources 10. report misconduct of other NSW Police Force employees Failure to comply with the Code of Conduct and Ethics may result in management action.
I do not understand how the applicant's failure to comply with the Direction resulted in a breach of points 1 or 6 and the respondent made no submissions to explain how this was the case. The applicant may have been in breach of point 3 if the Direction is regarded as a policy or procedure. However, the applicant had contravened point 5, assuming the direction was lawful and reasonable. I consider that such conduct was sufficient to ground a finding of misconduct.
In short, I consider that the only conduct the applicant may have engaged as at 31 December 2021, and had engaged in by 6 January 2022, was a deliberate contravention of the Direction and consequently she had engaged in conduct in contravention of point 5 and possibly point 3, of the Code of Conduct and Ethics.
The applicant responded to Mr Pisanos' letter by an email sent on 19 January 2022. The email requested the provision to her of the evidence used to support the findings made by Mr Pisanos. She followed that email up with another to SJ Newton in which she stated: "failure to produce the evidence, within three days of the original notice, may be concluded that no such evidence exists."
Having received no substantive response from Mr Pisanos or SJ Newton, the applicant again wrote to Mr Pisanos on 25 January 2022, in which she stated, inter alia: You failed to produce any evidence proving your claims against me. It is also clear you have not taken my Allegation Response (dated 29th December 2021) into consideration in accordance with s 39 of the Government Sector Employment (NSW Police Force) Rules 2017. If you had taken into consideration, it would be impossible to conclude any misconduct on my behalf. Therefore, it can reasonably be concluded that your claims are frivolous, unsubstantiated and false. A punishable crime under s 314 of the Crimes Act 1900. My only question now is …. [ellipse in original] Does the NSWPF wish to retain me on the terms of our original workplace agreement and co-create a healthy work relationship together, or is a termination package now being assembled to be negotiated? I look forward to your further communication.
The applicant sent a number of emails in early February 2022 seeking a response to her letter. On 2 February 2022 Superintendent David Driver emailed the applicant and requested a phone number to reach her on. The applicant responded the next day advising that she was best contacted via email. Superintendent Driver gave evidence that in dismissing the opportunity to engage in a telephone conversation with him, the applicant failed to avail herself of an opportunity of consultation regarding the Direction as it applied to her circumstances. The applicant's refusal to speak with Superintendent Driver reinforces my view that the applicant had no intention of complying with the Direction by getting vaccinated, or pursing the alternate processes available, namely seeking an exemption or providing a medical contraindication certificate.
Superintendent Driver sent an email to the applicant on 3 February 2022 as follows: I respect your wish to be contacted via email. I am the Commander of Management Action and Workplace Support within the Professional Standards Command. The Administrative Officer Conduct Unit is part of my Command. Your response to the Allegation of Misconduct has been received and will be considered by the Commander PSC, who is the delegate for these matters. You will be notified once a determination is made in accordance with the normal process. To maintain the integrity of this process I confirm that we will not be responding to the specific questions set out in your response. If there is anything additional you would like to place before the delegate for consideration please forward this to [email address] on or before 4pm, Monday 7 February 2022.
Thereafter the applicant provided a substantive response to Mr Pisanos' letter of 31 December 2021, by a letter dated 21 February 2022. The letter included the following: … I will reiterate what I already stated in my Allegation Response. 1. It is impossible for me to have received a COVID-19 vaccination within the specified time frame, considering I received the Direction after the specified timeframe. 2. It is impossible to be acting contrary to s28 of the Work Health and Safety Act 2011, which explicitly states "While at work, a worker must …" 3. I am not in the workplace (Maternity LWOP), nor have I been in the workplace since the onset of the Commissioner's Direction in this allegation. 4. I trust that evidence will be provided showing that I have acted contrary to 7(a), (d) & (e) of the Police Act 1990, as well as Points 1, 3, 5 and 6 of the NSW Police Force Code of Conduct and Ethics. 5. I do not, however believe such evidence exists considering I have not acted in a dishonest or unlawful way. I have sought truth and integrity throughout this whole process and continue to do so. 6. I maintain that at all reasonable opportunities, I have attempted to comply with the Commissioner's Direction by seeking further information and evidence before accepting the offer of vaccination, to which the NSWPF have deliberately ignored and instead continually threatened me with management action. 7. I maintain I have NOT deliberately chosen not to comply with the Commissioner's direction. It is impossible to make a choice considering the NSW Police Force, as my employers, have failed to provide me sufficient, appropriate and reliable information, including the potential risks and benefits of the COVID-19 vaccines. 8. At all reasonable opportunities, I have attempted to meaningfully engage in a consultation process with relation to the work, health and safety issues arising from the Commissioner's Direction and my desire to obtain a risk assessment for COVID-19 and the COVID-19 vaccination in my workplace. Despite these efforts, the management at NSWPF have continued to deliberately ignore my questions, putting me at serious risk of injury, illness and death. … Without proof of claim, you cannot continue to ascertain that the Commissioner's Direction Is Lawful and Reasonable. If the NSW Police Force truly uphold integrity and exercise authority responsibly, then you will be able to answer my genuine health and safety questions and build a healthy relationship of trust. I therefore wish for my employment contract to remain intact and my employment to remain unheeded.
As 25 February 2022 Superintendent Driver occupied the position of Acting Commander of PSC and as a result, held the delegated authority of the respondent to make disciplinary decisions regarding administrative employees including the applicant.
By letter dated 25 February 2022 Acting Commander Driver wrote to the applicant, addressing the applicant's submissions as set out in her correspondence of 25 January 2022 and 21 February 2022, and advising that he had decided to terminate her employment with effect from 11 March 2022, after giving her the opportunity to resign.
Acting Commander Driver's letter of 25 February 2022 included the following: As has previously been outlined, including in the 'Finding of Misconduct and Proposed Management Action' letter to you, the NSW Police Force has obligations under the WHS Act to ensure the safety of its workers and other persons so far as is reasonably practicable. In circumstances where police officers and some administrative employees are regularly interacting with members of the public, and then interacting with their colleagues, the risk of being exposed to the COVID-19 virus is significant. I am satisfied the direction is reasonable, and your contentions to the contrary do not dissuade me from the view that termination of employment is an appropriate response to your misconduct. As already acknowledged in the 'Finding of Misconduct and Proposed Management Action' letter to you, I accept that you have the right to decide whether or not you undergo a medical procedure in the form of vaccination. Neither the Commissioner not I can deprive you of that right or entitlement, and neither the Commissioner nor I are seeking to do so. The former Commissioner's direction, and the then Deputy Commissioner's direction, that all members of the NSW Police Force be vaccinated is one that all individuals can choose to comply with or not. If you decide not to be vaccinated as part of the exercise of your right not to subject yourself to a medical procedure, that is your decision and prerogative. However, it is my decision that there is consequently no place for you in the NSW Police Force, given the risks that you will pose, as an unvaccinated person, to your colleagues and members of the public, and the fact that you have chosen to prioritise your personal interests over compliance with the Commissioner's direction, which amounts to serious misconduct.
I am satisfied that Acting Commander Driver considered all the material the applicant had sent to the PSC after having received the 'show case' letter from SJ Newton, Management, AOCU, PSC dated 1 December 2022. The evidence of Superintendent Driver was that the applicant's responses indicated to him that the applicant had chosen not to get vaccinated. For the reasons set out above, and discussed further below, I agree with that conclusion. He also explained that in deciding to terminate the applicant's employment he considered the potential implications of the applicant "who seemed unlikely to be vaccinated … to unknowingly bring COVID-19 into her Command and inadvertently infect a large number of members of the Radio Operations Command." He went on to explain: "The Radio Operations Command is the nerve centre of the NSWPF. If a group of staff attached to that Command were to contract COVID-19 and needed to self-isolate for a period of time, this carried the real risk of leaving the NSWPF in a position where we could not respond operationally due to the absence of radio communication. The risk was not one that could be addressed with other risk control measures, including the use of Rapid Antigen Testing (RAT)….. It is my view that the only reasonably practicable solution was for Ms Lamarre-Condon to be vaccinated in the workplace. The NSWPF has an obligation to provide a safe workplace, however there is also a mutual obligation on members to do everything reasonably practicable so that a person's acts or omissions do not unnecessarily create a risk to the safety of anyone else in the workplace. We can implement all the control measures possible, however, while NSWPF members are not in the workplace we have no control on whether they follow higher level safety protocols and if they do not that poses a risk to the workforce. Vaccination was a higher level control measure to mitigate this risk. … I concluded, having regard to all the material that was before me, that [termination] was appropriate. In particular, given the ongoing effect of the Commissioner's Direction, the ongoing work health and safety obligations owed by the NSWPF to its members, and Ms Lamarre-Condon's conscious decision to not get vaccinated in compliance with the Commissioner's Direction, I considered termination of employment to be an appropriate outcome. Any other disciplinary outcome that left Ms Lamarre-Condon in employment with the NSWPF would mean that she would return to the workplace and present a risk to her colleagues. In determining that, in all the circumstances, it was appropriate she have a chance to resign prior to being terminated, so that could be reflected on her employment record. Ms Lamarre-Condon chose not to resign, which is her right.
In his affidavit Superintendent Driver stated that in reaching his decision he had regard to ss 7(a), (d) and (e) of the Police Act, s 28 of the WHS Act and point 5 of the Code of Conduct and Ethics. At paragraph [73] of his affidavit he stated: As members of the NSWPF, compliance with directions is an essential part of our duties. The Commissioner of Police must have confidence that members of the NSWPF can follow lawful and reasonable directions. I was satisfied, like Assistant Commissioner Pisanos, that Ms Lamarre-Condon had engaged in misconduct by failing to comply with the Direction, either by not getting vaccinated against COVID-19, or if she was not vaccinated, not providing evidence of that vaccination to the NSWPF.
It is not in dispute that the applicant had not and has not: 1. received any COVID-19 vaccine; 2. provided evidence to the respondent that she has received the COVID-19 vaccination; 3. provided a medical contraindication certificate to the respondent; or 4. submitted a request for an exemption from the Direction.

Unfair Dismissals

The principles to apply in the determination of applications for relief in respect of an alleged unfair dismissal are well settled and can be set out briefly.
Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
Section 88 of the Act sets out matters to which the Commission may have regard in determining an application under s 84. It is not necessary to reproduce that provision.
To be entitled to any remedy under the Act, the onus is on the applicant to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at p 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at pp 83-84.
The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the respondent to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29].

Obligation to Comply with Lawful and Reasonable Directions

As a significant part of the applicant's case focuses upon the legality and reasonableness of the Direction, it is helpful to set out some principles applicable to the requirement of employees to follow lawful and reasonable directions of their employer.
There is an implied term in employment contracts that employees have an obligation to obey directions about the performance of the contracted work that are lawful, reasonable, consistent with the contract and within the scope of the employment: R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; 60 CLR 601 at 621-622; Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; 310 IR 399 at [64] - [67]. Indeed, the obligation of an employee to obey the orders of an employer is one of the identifying features of employment: Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; 85 CLR 237 at 299 - 200 (Kitto J).
In addition, the respondent has express statutory power to issue "instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force", which includes "non-executive administrative employees": Police Act 1990, ss 3, 5, 8(4).
Section 28 of the Work Health and Safety Act also obliges a 'worker' to comply with reasonable instructions given by their employer to allow the employer to comply with the Act. Section 28 provides: 28 DUTIES OF WORKERS While at work, a worker must-- (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
The ramifications of failing to comply with a lawful and reasonable direction will depend on the seriousness of the breach. At common law a breach of the implied term imposing the obligation to obey is an intermediate term, such that a non-serious breach of the term does not give rise to a right to terminate: Adami v Maison De Luxe Ltd [1924] HCA 45; 35 CLR 143 (at 148-149 Isaacs ACJ), (at 155 - 156, Gavan Duffy, Starke JJ). Whether the breach is sufficiently serious and of a kind to entitle the employer to terminate the employee is a matter which requires an examination of the particular direction breached and all the surrounding circumstances, including whether the employee had notice that a breach of the direction could result in termination.
In the present matter the provisions of s 69 of the Government Sector Employment Act 2013 (NSW) and s 81E(1) of the Police Act 1990 (NSW), are also relevant. Section 81E(1)(h) provides: (1) The Commissioner may, by instrument in writing, terminate the employment of a non-executive administrative employee on any of the following grounds if the employment is ongoing employment - … (h) a finding of misconduct has been made against the employee under section 69 of the Government Sector Employment Act 2013, …
Section 69(4) of the Government Sector Employment Act 2013 provides: (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions-- (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), …
"Misconduct" is defined in s 69(1), non exhaustively, as follows: "misconduct" extends to the following-- (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment.

Directions to be Vaccinated and the Requirement to Consult

The legality and reasonableness of directions requiring employees to be vaccinated against COVID-19 have been considered in numerous cases since the onset of the pandemic, in this jurisdiction and in others. The legality and reasonableness of the Direction the subject of this proceeding has specifically been considered in Southcombe v Commissioner of Police [2022] NSWIRComm 1112 (Muir C); Welch v Commissioner of Police [2023] NSWIRComm 1002 (O'Sullivan C) and Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1014 (O'Sullivan C). In each case the Commission has upheld the lawfulness and reasonableness of the Direction. For at least the reasons that follow, I respectfully agree with the conclusions of my fellow Commissioners.
It is now well settled that a vaccine mandate is prima facie lawful where it is introduced to protect the health and safety, at work, of workers and other people, such a direction being within the scope of the employment and there is nothing 'illegal' or unlawful about becoming vaccinated: Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; 310 IR 399 at [85] and [261]; Southcombe v Commissioner of Police [2022] NSWIRComm 1112 at [6], and [16] - [19].
The applicant in Welch, like the applicant in this case, had argued that the Direction was not lawful or reasonable because the respondent had failed to consult as required by the Work Health and Safety Act prior to the introduction of the Direction. The failure to properly consult had been the basis upon which the Full Bench of the Fair Work Commission had found that a vaccination mandate at Mt Arthur coal mine was not reasonable.
As the applicant's case is centred on the respondent's alleged failure to engage in 'meaningful consultation' with her, it is important to explain why a failure to properly consult with employees is capable of making a direction which is otherwise prima facie reasonable, not reasonable, although not unlawful. The answer is found in the WHS Act, specifically Part 5, Division 2.
Part 5, Division 2 of the WHS Act provides as follows: Division 2 Consultation with workers 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. Maximum penalty - (a) in the case of an individual - 230 penalty units, or (b) in the case of a body corporate - 1,155 penalty units. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. (3) The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation (1) Consultation under this Division requires - (a) that relevant information about the matter is shared with workers, and (b) that workers be given a reasonable opportunity - (i) to express their views and to raise work health or safety issues in relation to the matter, and (ii) to contribute to the decision-making process relating to the matter, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters - (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for - (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
The Full Bench of the FWC in Mt Arthur Coal found that the employer in that case had failed to adequately consult with employees prior to introducing a directive that employees be vaccinated for COVID-19, with the result that the directive was not reasonable.
It is important to appreciate however, that adequate consultation is only one matter that will inform whether a direction is reasonable. As the Full Bench in Mt Arthur Coal explained at [72]: Reasonableness is 'a question of fact having regard to all the circumstances' and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows: 'But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.'
In other words, as was submitted by the respondent in this case, a failure to adequately consult will not be determinative of the matter. There may be other relevant considerations, including the nature of the employment, which will mean that a direction given with respect to health and safety without adequate consultation, may nevertheless be reasonable.
At [108] the Full Bench in Mt Arthur Coal set out a non-exhaustive list of propositions which may be drawn from the cases about what constitutes consultation. It is unnecessary to set them out here, as I agree with Commissioner O'Sullivan's finding in Welsh at [59] that "it is more likely than not that the consultative requirements of the WHS Act as at 7 September 2021 had not been complied with." The respondent had argued that in this case that: … while the rapid spread of the Delta variant may have left the NSWPF with a fair argument to say that consultation of any kind was not reasonably practical, the NSWPF nonetheless endeavoured to undertake an abridged form of consultation with its members. Plainly, the increasing risk to the health and safety of NSWPF employees in around August and September 2021 rendered it not reasonably practicable for the New South Wales Police Force to undertake an extensive consultation process.
There is some force to this submission, however, I ultimately do not need to decide whether the consultation prior to 7 September 2021 was or was not adequate for the purposes of the WHS Act, because even if I were to find it was inadequate, I agree with Commissioner O'Sullivan's finding in Welsh at [64] that the Direction was nevertheless reasonable because: 1. the respondent had provided extensive information concerning COVID-19 and the vaccines to members of the NSWPF throughout the pandemic and the period when vaccines were available and provided various avenues for individual employees to provide feedback; 2. there was consultation with the consultative committee prior to the mandated time for the first vaccination under the Direction; and 3. the mandate was supported by the PANSW.
I would also add to that list, the following matters which were established by the evidence in this case: 1. the respondent responded to the applicant's questions by providing a fact sheet which largely addressed the medical questions posed by the applicant and directed her to where additional information regarding the vaccines could be found; 2. the Direction allowed for employees to apply for an exemption from compliance with the Direction, which the applicant in this case did not do, and allowed for the provision of medical contraindication certificates in lieu of vaccination, thus catering for those employees who were not 'reasonably able' (to use the words of s 28(c) of the WHS Act) to comply with the Direction; 3. Superintendent Driver attempted to discuss the Direction and the applicant's compliance with it by telephone, however his efforts were rebuffed; and 4. the NSWPF provides an essential frontline service to the community of NSW such that in the face of the increasing risk posed by the Delta variant, the Direction was reasonable, even if its issue was in breach of the consultation provisions of the WHS Act.
There are two other important points to note in respect of the decision of the Full Bench in Mt Arthur Coal and the subsequent decisions of this Commission. First, contrary to the applicant's understanding, the Full Bench did not decide that the directive in that case was unlawful. Rather, it found that the directive was unreasonable due to a failure to consult and left open the question of whether a contravention of the consultation provisions of the WHS Act rendered a direction unlawful.
Since then, however, the question has been decided. In Stewart Tween v Qantas Airways [2022] FWC 1594, Deputy President Easton of the Fair Work Commission considered the question in the context of the introduction of Qantas' mandatory vaccination policy and reached the following conclusion: [91] By contrast, the consultation provisions in the WHS Act impose obligations on an employer to do certain things, but they do not prevent the employer from doing anything. If Qantas has contravened s.47 of the WHS Act, it has done so by omission - by failing to do something that the WHS requires it to do. [92] Understood in this way, the direction given by Qantas when it published its Policy, was not conduct in contravention of the WHS Act or otherwise illegal or unlawful.
Expressed another way, s 47 of the Work Health and Safety Act does not provide that an employer cannot issue a direction unless they have complied with that section or any other provision of the Act or regulation. A direction which concerns one of the health and safety matters listed in s 49 will oblige the employer to consult, such that a failure to consult will result in a breach of the Act for which action may be taken against the employer, however such failure does not make the direction itself, illegal. The issuing of a health and safety direction without consultation is not an action prohibited by the Act.
Commissioner O'Sullivan followed Stewart Tween in Welsh, finding, at [62]: I agree with the reasoning of the Deputy President in Tween and on this basis, I do not consider that the Direction upon its' announcement on 7 September 2022 was unlawful even if there had been a contravention of the consultation provisions of the WHS Act.
The other important point to note is that after the delivery of the Full Bench decision in Mt Arthur Coal, the employer withdrew the directive and commenced a further period of consultation with its employees with the assistance of the FWC: see Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6626 (Saunders DP). Following that consultation, Mt Arthur Coal reintroduced the vaccination requirement and issued letters to stood down employees advising as to next steps, but which included that stood down employees would have a period of seven days to consider whether they would comply with the requirement.
While genuine consultation will generally take place where a process of decision-making is still at a formative stage, this does not preclude a decision-maker coming to a decision, but then, genuinely, asking those persons with whom he or she is required to consult, what they think about that decision, provided that the decision maker is open to changing their decision. In other words, the decision must not be irrevocable. A genuine opportunity must be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. This is what Deputy President Easton found occurred in Stuart Tween v Qantas Airways Ltd [2022] FWC 1594 at [69] - [76] and [93] - [98] and what I found occurred in Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004 at [233] - [238].
The evidence in this case and in Welsh was that the respondent did consult with the PANSW and, to a lesser extent, with the PSA, after issuing the Directive and there is no evidence that either union sought to persuade the respondent to adopt a different course of action.
There is a final matter to address in respect of consultation, as it arises squarely in this matter. Commissioner O'Sullivan in Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1014 at [27] held, by reference to Brasell-Dellow and Ors v State of Queensland, (Queensland; Police Service) and Ors [2021] QIRC 356; 310 IR 212 at [124] - [131], that the requirement for consultation under the WHS Act does not require consultation with all individuals, particularly where the employer is a large organisation. In Brasell-Dellow the Full Bench of the Queensland Industrial Relation Commission, at [124] stated: Section 47 is of general application to all workforces and workplaces. It is easy to imagine that it may be reasonably practicable to consult on a face to face basis and fully in terms of s 48 with each individual member of a small workforce. Here, the workforce is over 17,200 in number.
The Full Bench went on to find that proper consultation regarding a COVID-19 directive had occurred in that case, in circumstances where the three unions with total coverage over the workforce had been consulted and had agreed with the directive.
As noted above, I do not propose to make a finding as to whether the consultation regarding the Direction in this case satisfied the requirements of the WHS Act, as I am satisfied that the Direction was nevertheless lawful and reasonable, however, I do not accept that a failure to consult individually with the applicant with respect to the Direction, alone, results in a breach of the s 47 of the WHS Act.

Consideration

The applicant made the following oral submission in opening: I, a young mother of 25 years of age, was then dismissed from the New South Wales Police Force for nothing more and nothing less than asking questions. Asking health and safety related questions is what ultimately led to my referral to the conduct unit. An allegation of misconduct then proceeded and finally a harsh, unfair and [un]just dismissal. Asking questions is the beginning and the end of the conduct in which I engaged.
Such submission reflects the general approach the applicant took to the Direction - instead of doing as directed, the applicant took the view that she was entitled to ask questions of and receive answers from, the respondent, and that the mere asking of those questions constituted a reasonable attempt to comply with the Direction, such that the respondent was prevented from taking any action against her whilst ever her questions were not answered to her satisfaction. Such approach was entirely misguided.
A similar approach had been taken by the applicant in Christine Inwood v Baxter and Co. Pty. Ltd [2022] FWC 792. Interestingly, the applicant in that case had also written to her employer, Baxter & Co, an operator of a shoe store in Tamworth, New South Wales, with questions in very similar, and in some cases identical form, to the questions posed by the applicant in this case. For instance, Ms Inwood in that case had asked: 1. Can you please advise me of the approved legal status of any vaccine and if it is experimental? 2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?
Easton DP in Inwood observed, at [47], that Ms Inwood's correspondence was a template style letter that "have appeared in many unfair dismissal applications lodged in the [Fair Work] Commission" and that "many unvaccinated ex-employees have relied upon these letters to their demise". It seems the applicant in this matter relied on the same template letter, although perhaps to her credit she avoided some of the more egregious questions and statements found in such letters and added some questions that were relevant to her own circumstances.
Easton DP found in Inwood (at [48]) that by her correspondence, Ms Inwood had "unambiguously conveyed to Baxter & Co that she was not prepared to be vaccinated." He went on to explain: 48. …Even though her letter of 3 October 2021 asked questions about the consequences of being vaccinated (thereby superficially implying that she was open to the possibility of being vaccinated) and, by its words indicated that she would be prepared to be vaccinated if certain conditions were satisfied, Baxter & Co was entitled to interpret her letter as a refusal to be vaccinated. 49. The loaded questions in the letter require the employer to provide certain information and "assurances" to Ms Inwood so that she can be "satisfied that there is NO threat to [her] health". Many of the questions asked of the employer are ridiculous. It is ridiculous, for example, to ask the employer for "details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests". Quite obviously Baxter & Co, the operator of a shoe shop in rural NSW, cannot provide any such "details", let alone give "assurances" about the independence and rigour of vaccine testing protocols. It is similarly ridiculous to ask the respondent to "fully advise of all the adverse reactions associated with this vaccine since its introduction", and so on.
While it may be assumed that the NSW Police Force has more resources than a regional shoe store owner, it is equally ridiculous for the applicant in this case to have directed any genuinely held concerns about efficacy and safety of the vaccines to her employer, particularly in circumstances where her employer had given her information about the vaccines and provided access to additional information, and moreover, in circumstances where she had failed to seek answers to those questions from a medical practitioner.
The following exchanges between the applicant, counsel for the respondent, Mr Watts, and myself, demonstrates the extent of the applicant's disingenuity in responding to the Direction with the questions that she did: Q. And in that email you've asked questions about the direction that you've been issued and about vaccination? A. Yes. Q. You'd agree with me that several of those questions are medical in nature? A. No. Q. You don't agree with that? A. No. Q. So you don't agree that a question about the effectiveness of the vaccine in preventing transmission is medical in nature? A. Surely that should be known by the Commissioner if the Commission is issuing this direction. Q. That wasn't quite my question. My question was, are you saying that how effective is the vaccine in preventing transmission? That question is not medical in nature, is that what you're saying? A. What I'm saying is you could say any question asked about the direction is going to be medical in nature because the direction is mandating medical treatment, so yes, questions are going to be seemingly, medical in nature. Q. Because they have all got some sort of medical undercurrent to them as you've identified? A. Not all of them, but yeah - well - yeah, in a way, 'cause, yeah. Q. You could have spoken to a doctor, to get answers to these questions, do you agree? A. Not entirely, no. I don't agree with that. Q. You couldn't have spoken to a doctor about the effectiveness of the vaccine in preventing transmission? A. Well of course I could have but it wasn't my doctor telling me to get vaccinated. Q. You could have spoken to your doctor about the effectiveness of vaccination in lactating mothers? A. I asked my employe[er] first before I asked the doctor. … Q. So you didn't speak to a doctor, having received this direction, I think that's where we landed on that, is that right? A. No, I didn't get that far. Q. Now in this email that you sent on 19 October, you didn't say anywhere there that you intended on getting vaccinated? A. That I intended? Q. Yes? A. No, I say, "Can you assist me in my informed consent to taking this injection?". Q. You didn't make any attempt, after getting the Commissioner of Police's direction, to get vaccinated? A. The first attempt was the questions. Q. So is the answer to my question no, you didn't make any attempt to get vaccinated after getting the direction? A. The answer is yes. Q. You did make at attempt, you say? A. Yes, the questions are the attempt. Q. I see, so what your evidence is, is that to comply with the direction - sorry I withdraw that. In your mind, compliance with the direction was achieved by asking these questions? A. Compliance was achieved - it was the first step to complying, yes. Q. And what I want to suggest to you Ms Lamarre is that you could have obtained medical advice from a doctor to allay any concerns that you had about being a breastfeeding parent and getting the COVID vaccination, do you agree with that? A. I was - sorry was the question I could have asked the doctor? Q. Yes? A. Oh yeah, I could have asked the doctor, sure. Q. But you didn't do that? A. I didn't get that far. Q. When you say you didn't get that far, you would consult with a doctor reasonably frequently with a newborn? A. No. Q. No? A. Not frequently, no. Q. But you would consult with a general practitioner from time to time? A. If needs be, yes. Q. And in none of those consultations, did you ask anything about getting vaccinated against COVID-19, correct? A. Did I ask? No, I never asked. Q. You never asked about that? A. Well I never went to the doctor to ask - yeah, no. COMMISSIONER Q. Did you go to the doctor during the period that you were breastfeeding - or you were still breastfeeding? A. Yeah, I didn't go to the doctor during the period of breastfeeding, no. Q. So you haven't, from the time you gave birth to now, you haven't been to the doctor? A. I have been to the doctor for other things. Q. Okay. For other things? A. Yeah. Q. And during those consultations you haven't asked about the safety of the vaccine? A. No because the other things were about the other things. Q. Sure. But it was an opportunity to, if you wanted to? A. If I wanted to. Q. And why didn't you want to? A. Because they weren't my appointments, they were my child's appointments, does that make sense. Q. Okay. Although-- A. I wasn't consulting the doctor for me, it was-- Q. Sure, but breastfeeding is about the child-- A. Yeah, yeah. Okay. Q. But you just didn't take that opportunity? A. Well those times that I went to the doctor would have been before the direction was sent to me I believe. Q. You haven't been to the doctor since 7 September? A. I really can't recall this-- Q. Sorry, no, you didn't get it then, October? A. 18 October, yeah, I really can't recall dates I've gone to the doctor. WATTS Q. But you could have gone to the doctor after 18 October, correct? A. Could have. Nothing stopping me, sure. Q. And you indicated before that your primary concern about being vaccinated was because you were breastfeeding? A. Mm hm. Q. Sorry, I think you're going to have to give a verbal answer for the transcript? A. My primary reason, yes. Q. And despite this concern that you had about the impact of COVID vaccination on breastfeeding? A. Mm hm. Q. You didn't go and speak to a doctor about that at any point in time? Have I got that right? A. I was asking my employers to answer the question. Q. And you say that that was sufficient for you and that you and that you didn't have to go and do anything else, including speak to a doctor and get this advice yourself? A. Well at no point did the respondent ever refer me to the police medical officer, so that could have happened, but it didn't. Q. Did you ask to be referred to the police medical officer? A. I didn't realise I had to ask to be referred but they were referring me to a doctor and the[y] could have referred me to that doctor. Q. So the answer to my question is no, you didn't ask to be referred to the police medical officer? A. Didn't ask to be referred, no, I didn't ask to be referred. … Q. By 19 October 2021, you just had no intention to get vaccinated at all, correct? A. No intention. I asked the questions to make a decision. Q. But you've done some of your own research, I think you've given that evidence, correct? A. Yes, in light of the direction, yes. Q. And having done that research you were still not desiring of having the COVID vaccine, that's right? A. Not desiring, not without my questions not being answered.
Any person who was genuinely interested in knowing the risks posed by the COVID-19 vaccines and had an open mind as to whether they should bear those risks in order to comply with a Direction of their employer, would ask those questions of a suitably qualified and independent person, rather than rely on the advice of the unqualified person or institution who was requesting that they receive a vaccination. The fact that the applicant took no steps whatsoever beyond reading material on the internet, to seek out qualified advice as to the risks the vaccine might actually pose to her and/or her child, particularly in circumstances where she had the opportunity to do so, leads me to the view that the applicant was entirely disingenuous in asking the questions of her employer which she did.
The tone and content of the applicant's correspondence with the respondent, the letter to Ms Magurren of 9 January 2022 in which she clearly stated that she regarded the vaccines as posing a risk to her and her baby's health and safety, the evasive and prevaricating manner in which the applicant gave evidence in cross examination, together with the fact that as at the date of the hearing the applicant remained unvaccinated, confirmed the view taken by the respondent that the applicant had deliberately chosen not to comply with the Direction. It was a choice the applicant was at liberty to take, but it was a choice which meant she would be in breach of Point 5 of the NSW Police Force Code of Conduct and Ethics and could not remain employed by the respondent.
In short, the applicant embarked on a strategy by which she thought she could avoid the ramifications of her choice not to follow the Direction. By asserting her right to make a fully informed decision whether to get vaccinated or not and then insisting that her employer give her answers to the numerous questions she asked, the applicant sought to avoid expressly telling the respondent that she did not intend to get vaccinated. By this means, the applicant sought to avoid 'management action'. I do not accept that the applicant held a genuine desire to obtain information about the vaccines before making a decision as it is clear that she had already made a decision not to be vaccinated. The applicant may have had a justified grievance had she sought additional time to consider whether to comply with the Direction while she genuinely sought advice from a medical practitioner, or if she sought an exemption from the Direction while she continued to breastfeed (noting that the granting of such an exemption was still a matter for the respondent), however she did not take either approach. Instead, she continued, somewhat belligerently, to insist that her employer provide her with answers to her questions.
In relation to the applicant's ongoing unvaccinated status, I note that in June 2022 the respondent served his tender bundle of documents which was ultimately admitted into evidence and which included two documents published by the Australian Government. The first is headed "COVID-19 vaccination decision guide for women who are pregnant, breastfeeding or planning pregnancy". The document is dated 29 April 2022 and so post-dates the applicant's termination, however it expressly states, inter alia: ● COVID-19 vaccines are recommended in people who are breastfeeding. ● Real-world evidence has shown that Pfizer and Moderna vaccines are safe if you are pregnant and breastfeeding. … … What are the recommendations if I am breastfeeding? Pfizer and Moderna are the preferred vaccines for people who are breastfeeding. You do not need to stop breastfeeding before or after vaccination.
The second document is headed "Pregnancy, breastfeeding, and COVID-19 vaccines". It is dated 30 May 2022 and so also post-dates the applicant's termination. This document contains similar information as the first, including that: Real-world evidence has shown that Pfizer and Moderna vaccines are safe if you are pregnant or breastfeeding. There are no known safety concerns associated with Novavax or AstraZeneca that are specific to pregnancy, breastfeeding or planning pregnancy. However, these vaccines are not preferred because there is less data about their safety in pregnant or breastfeeding women.
While the applicant did not have the benefit of these documents prior to her termination, she did as at the date of the hearing. Despite this, when asked by counsel for the respondent whether she was now vaccinated, as noted above, her response was: "Sitting here today, I don't know enough about the COVID-19 vaccination, so no."
In the circumstances I am of the view that the applicant had no intention of complying with the Direction prior to resuming work after her maternity leave, or at any time in the foreseeable future, and the respondent, by his delegate, was entitled to form the same view. As I consider that the Direction was lawful and reasonable for the reasons already explained, the applicant was obliged to comply with it.
While I do not accept that the applicant's non-compliance with the Direction constituted a breach of ss 7(a), (d) & (e) of the Police Act 1990, s 28 of the WHS Act or Points 1 and 6 of the NSW Police Force Code of Conduct and Ethics, it is a clear breach of Point 5 of the Code and possibly, Point 3 of the Code. Her defiance of the Direction was intentional and as such, capable of constituting misconduct at common law. I accept that the applicant had engaged in misconduct and consequently the respondent was authorised pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 to terminate the employment of the applicant after giving her an opportunity to resign and to terminate her employment pursuant to s 81E(1)(h) of the Police Act 1990. I accept that the respondent's submission that termination after giving the applicant an opportunity resign, was a proportionate response to the misconduct given that the respondent considered and still considers, it essential that members of the NSWPF be double-vaccinated against COVID-19 to ensure the safety of the members and the public. Consequently, I do not consider that the applicant's dismissal was unjust.
The applicant was aware of the Direction well before her scheduled return to work from maternity leave on 1 January 2022 and was provided with sufficient information regarding the vaccines to enable her to make an informed decision as to whether to become double-vaccinated. Mr Driver's efforts to discuss her individual circumstances were rejected. Importantly she was also made aware that non-compliance with the Direction would result in disciplinary action. I also accept that the respondent would have regarded the applicant as having complied with the Direction, despite the long-elapsed deadline for receiving the vaccine, if she had have been double-vaccinated when she returned to work in January 2022. In the circumstances, the applicant's dismissal was not unreasonable.
I do not accept that the detriment suffered by the applicant as a result of her dismissal is such that her dismissal could be regarded as sufficiently harsh so as to outweigh the fact that she deliberately disobeyed a lawful and reasonable direction issued by her employer. While it is the case the applicant was dismissed upon her scheduled return from maternity leave, and I accept that finding a job while caring for a small child can be difficult, particularly one on the apparently favourable terms the applicant had enjoyed while employed by the respondent, the applicant had only worked for the respondent for seven months before going on maternity leave and her prospect of finding employment generally, given her obvious intelligence, would appear to be good. While I accept the applicant's evidence that she anticipated that the lack of pay during her maternity leave was only short term, until she returned to work with the NSWPF, the fact is she deliberately failed to abide by the Direction and thereby brought upon herself the predicament she now finds herself in. As Commissioner O'Sullivan said in Welsh at [74]: "It would be expected that members of the NSWPF would abide by such directions and particularly so in relation to matters concerning issues of safety." In the premises the dismissal was not harsh.
In coming to the view that the applicant has not made out her claim that her dismissal was harsh, unreasonable or unjust I also considered each of the submissions made by the applicant. I set out below my specific findings in respect of those submissions, as there were summarised above under the heading 'The Bases upon which the Applicant asserted her dismissal was unfair'.

The Direction was not lawful or reasonable as the COVID-19 vaccines are neither safe nor effective and hence the applicant believed it puts her life and health in danger

This submission was not ultimately pressed. In her written response to the respondent's oral submissions dated 29 November 2022 the applicant stated: "1. …. my case is not about the overall safety and efficacy of the vaccines, the effects of the pandemic or the necessity of needing to mandate the vaccine. These are mere distractions form the case at hand. Also, there is no expert to confirm or deny those submissions [of the respondent]. 2. What my case is about is my unfair dismissal which arose from the conduct of my employers in failing to consult with their employees and the unreasonable referral to the conduct unit following my attempt to engage in meaningful consultation.
In any event the applicant did not lead evidence to make good this submission.

The Direction was not lawful or reasonable because the respondent failed to comply with the consultation obligations under the WHS Act

I dealt with and rejected this submission in paragraphs [121] to [139] above.

The Direction was not lawful or reasonable because the applicant was only notified of it after the deadline to receive the COVID-19 Vaccine

I explained in paragraph [65] above, that it appears that the respondent was open to employees who were on leave at the time the Direction was issued applying to defer vaccination until their return to the workplace, however the applicant took no steps to pursue such an option. Further, as discussed in paragraph [76], the evidence makes clear that the respondent was prepared to allow the applicant to return to work, despite the fact that she technically had breached the Direction (assuming it applied to her while she was on leave) by not being vaccinated by 30 September 2021, provided she was fully vaccinated and provided proof of her vaccination, prior to her first shift, which was scheduled for 6 January 2022. In the premises, the later notification of the Direction did not make it unlawful or unreasonable.

The Direction was not lawful or reasonable because it required her to submit personal medical information in circumstances where she was not provided with information regarding the collection of such information as required under the Privacy Act 1988 and the Australian Privacy Principles

The applicant asserted that she had not been provided with certain information regarding the collection of her 'vaccination status', in contravention of the Privacy Act and the Australian Privacy Principles. However, these arguments were not developed by the applicant and consequently the respondent was not in a position to properly respond to them. What the respondent did submit was that the Privacy Act and the Australian Privacy Principles do not apply to the respondent, but rather the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) apply.
Regardless which regulatory scheme applies, the applicant did not articulate exactly how the applicable legislation was breached, nor did she lead evidence to establish that the applicable legislation was breached, noting that the evidence showed that she was provided with information by the respondent as what information was to be collected (her vaccination status) and why it was required (to establish whether she had been vaccinated in order to protect other workers and the public). There is no evidence that the respondent was keeping copies of vaccination certificates. While the applicant asserted that she felt threatened and coerced to provide her consent to the provision of her vaccination status, she ultimately exercised her right not to consent to the collection of her personal information.
While I acknowledge that the Full Bench in Mt Arthur Coal discussed, at [202] - [214], whether a breach of an organisation's privacy obligations could result in a direction to provide personal information being unlawful or unreasonable, it came to no concluded view on the matter and given the limited information before me, I cannot make a ruling that the Direction in this case was not lawful or reasonable on the basis that it required the provision of personal information in circumstances where privacy legislation had not been complied with.

The respondent failed to follow the "Grievance and Dispute Settling Procedure" set out in cl 9.4 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award

The applicant made the bare assertion, in her Unfair Dismissal Application, that the respondent had failed to comply with clause 9.4 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award (Admin Award). How this was said to make the applicant's dismissal unfair was not explained.
Clause 9.4 of the Admin Award provides: The immediate manager, or other appropriate officer, shall convene a meeting in order to resolve the grievance, dispute or difficult within two (2) working days, or as soon as practicable, of the matter being brought to attention."
The respondent submitted in response: 1. The Admin Award does not apply to the applicant, but as a Communications Officer, the applicant's conditions of employment are governed by the Crown Employees (NSW Police Force Communications Officers) Award (Comms Award); 2. Clause 19.1 of the Comms Award is equivalent to clause 9 of the Admin Award; 3. It is not apparent that the applicant ever raised a grievance under the Comms Award, but even if the applicant could establish that she raised a grievance under cl 19.1, the email communications with between her and her managers establish substantial compliance with the Comms Award.
There is force in the respondent's submissions. In any event, the applicant did not press the submission.

The respondent engaged in coercion and duress by referring her matter between departments of NSWPF and her genuine health and safety concerns for herself and her baby appeared to be ignored or not taken seriously and the respondent did not respond to her concerns in an appropriate or proportionate way

I wholly reject this submission. As I have detailed above the applicant was provided with information regarding the COVID-19 vaccines in response to her questions, and on the applicant's own evidence, such information was sufficient for her to form a view that the vaccines were 'experimental'. Further, I consider that the applicant's ongoing requests for information, in circumstances where she made no attempt to have her health and safety concerns for herself and her baby addressed by a medical professional, and were she refused to speak with Superintendent Driver, were designed to obfuscate in an attempt to avoid the ramifications of a failure to comply with the Direction.
My impression of the applicant during the hearing was also of a person not easily overborne. The applicant is an intelligent person who is ready and able to assert her perceived rights. This was also demonstrated by the increasingly strident tone of the applicant's correspondence with her superiors leading up to her dismissal, including her letter to Ms Magurren of 9 January 2022 asserting rights under the WHS Act.

The decision to terminate her was unjust or unreasonable in circumstances where she had elected to cease work due to an unsafe workplace pursuant to s 84 of the WHS Act

Section 84 of the WHS Act provides: A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
I set out the grounds upon which the applicant asserted that if she were to attend work she would be exposed to a serious risk to her health and safety, emanating from an imminent exposure to a hazard, namely the vaccines, in paragraph [80].
As has been previously noted, the applicant at the hearing and in her final written submissions eschewed any suggestion that her case was "about the overall safety and efficacy of the vaccines." Consequently, she did not attempt to establish that the vaccines, if received, would expose her to a serious risk to her health and safety.
I reject the submission that the applicant's termination was unjust or unreasonable in circumstances where she had elected to cease work due to an unsafe workplace pursuant to s 84 of the WHS Act because: 1. she was not terminated for failing to attend work, but for failing to comply with the Direction; and 2. she failed to establish that she had a reasonable concern that to carry out the work would expose her to a serious risk to her health or safety, emanating from an immediate or imminent exposure to a hazard, namely the vaccines.

Her termination was harsh

The applicant submitted her termination was harsh in circumstances where: 1. she and her partner are now unemployed with a small baby and are struggling financially, with their only source of income being parenting payments from the Commonwealth Government. 2. she asked reasonable questions to ascertain whether being vaccinated was safe while lactating; 3. she never refused to get vaccinated, she just needed further information to determine if vaccination was appropriate in her personal circumstances, and that she would have applied for an exemption if she determined it was not; 4. having serious misconduct on her employment file will seriously impact any future job prospects and her reputation; 5. she endured an intense 13 week training course to secure her role and at 25 years of age, she was just beginning what she hoped would be a long career in the NSWPF; 6. she was terminated on her birthday; and 7. she has not found suitable employment since her dismissal and comparable employment opportunities, including a flexible work arrangement (FWA), were unlikely to be readily available to her.
I accept that the applicant and her partner have suffered and are suffering a significant financial detriment as a result of the applicant losing her employment with NSWPF; that she had undertaken a difficult 13 week course to secure her role; and that she hoped to have a long career in the NSWPF. While I also accept that the applicant may find it difficult to find suitable employment with comparable conditions, her evidence was that she had not applied for another job since her dismissal. I do not consider the fact that she was terminated on her birthday, in circumstances where there was no evidence this was done intentionally, has any bearing on the harshness of her termination.
I do not accept that having misconduct on her employment file will seriously impact the applicant's future job prospects or her reputation, given the reason for the finding of misconduct and the applicant's otherwise good employment prospects given her age and aptitude.
For the reasons already discussed, I do not consider that the applicant's ongoing questioning of the respondent was reasonable or that she 'just needed further information to determine if vaccination was appropriate'. For the reasons otherwise set out in paragraph [156] I do not consider the applicant's termination was harsh.

Directing an employee not in the workplace to comply with a workplace policy is not lawful or reasonable

For the reasons set out at paragraphs [64] -[68] and [84] - [86] above, I have real concerns as to whether the applicant was obliged to follow the Direction while she remained on maternity leave. However, I consider that the applicant was obliged, on or about 24 December 2021, being a little over a week from her scheduled return to work, or at the very latest 5 January 2023, to comply with the Direction, yet she failed to comply with the Direction by her first scheduled shift on 6 January 2022.

The finding of misconduct was wrong

The applicant submitted that the finding of misconduct was wrong in circumstances where: 1. she had not deliberately chosen not to comply with the Direction as she did not perform duties in contravention of the Direction and she "demonstrated her willingness to comply, by asking appropriate and relevant questions prior to her return to the workplace" - in the words of the applicant: "Asking health and safety related questions does not amount to misconduct"; 2. she only received the Direction after the date upon which she was to receive a first dose of a vaccine; and 3. she could not be acting contrary to s 28 of the WHS Act as she was not at work when she was accused of acting contrary to that provision.
As discussed at paragraphs [47] - [49] above the Direction required the applicant to be double-vaccinated (absent a medical contraindication certificate or exemption). The applicant did not get double-vaccinated. As discussed at length, I do not consider that the applicant's questioning of the respondent demonstrated a willingness to comply with the Direction - on the contrary the content and tone of the applicant's communications with the respondent indicated an intention not to comply with the Direction.
In respect of the submission that the finding of misconduct was wrong in circumstances where the applicant only received the Direction after the date upon which she was to receive a first dose of vaccine, I repeat the matters set out in paragraph [161] above.
Lastly, while I agree that the applicant could not be acting contrary to s 28 of the WHS Act whilst ever she was not at work, she nevertheless failed to comply with a lawful and reasonable direction given by someone in the NSW Police Force who had authority to give the direction, thereby breaching Point 5 of the NSW Police Force Code of Conduct and Ethics and constituted action inconsistent with the employee/employer relationship.

The respondent had been negligent, intimidating and reckless

The applicant submitted that the respondent had been negligent, intimidating and reckless, by: 1. ignoring her health and safety concerns; 2. "choosing not to engage in debate"; 3. refusing to accept that she was entitled to 'Cease Unsafe Work' pursuant to s 84 of the WHS Act; 4. making false allegations against her; 5. doing all of the above while she was on parental leave caring for her small child;
For the reasons already discussed, I reject this submission.

The respondent was in breach of section 7(b) of the Police Act (NSW), and points 1, 3 and 6 of the NSWPF's Code of Conduct and Ethics in failing to comply with ss 47-48 of the WHS Act;

While the applicant rightly points out that if the respondent is in breach of ss 47-48 of the WHS Act this could place the respondent at odds with s 7(b) of the Police Act and the NSWPF Code of Conduct and Ethics, I have made no finding that the respondent did breach the WHS Act and ultimately only a Court may determine whether the respondent was in fact in breach of the WHS Act. In any event, I am not satisfied, given the matters discussed in paragraphs [119] - [139] above, that even if a breach of the WHS Act were established and that such breach was conduct contrary to s 7 of the Police Act and the Code of Conduct and Ethics, that this would vitiate Direction.

There is no evidence that she has refused to be vaccinated

I repeat the matters set out in paragraphs [52], [66] - [68], [79] - [81], [85] - [86] and [152] - [153].

The evidence showed, that at the time the mRNA vaccine was released to the public, in January 2021, it had not been tested on lactating mothers, therefore the risk it posed was unknown.

This submission referred to the information in the TGA Report. I accept that this submission in so far as it goes. However, this fact underscores the disingenuity of the applicant's ongoing questioning of the respondent. If this was a matter which concerned the applicant, she was at liberty to decide when she first became aware of the Direction on 18 October 2021, that it would be best for her not to be vaccinated. In these circumstances she should have applied for an medical contraindication certificate or an exemption in the first instance, rather than continue to demand further answers from her employer. Further, the applicant's dismissal for failure to comply with the Direction occurred some 12 months after the TGA Report was published. As I have already noted, I find the applicant's failure to seek further advice from a medical practitioner as to the safety of the vaccines on lactating mothers (and moreover, their children) perplexing, and evinces that she was not genuine in her apparent quest for answers to her questions.

Conclusion and Orders

For the above reasons I find that the applicant has not made out her case that her dismissal was harsh, unjust or unreasonable and accordingly I order that her application be dismissed. Janet McDonald Commissioner

Amendments 15 March 2023 - Corrections made in Paragraphs [60], [92], [148], [173], [176] & [179]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2023

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