Larter v Health Secretary in respect of Murrumbidgee Local Health District [2025] NSWIRComm 6

1. Leave to appeal the decision of a Commission member can only be granted if the Full Bench of the Commission is of the opinion that the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the IR Act.
2. The principles guiding the determination of leave were set out in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5]:

"The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52]- [55] and Knowles at 381-382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."

1. Further, the Full Bench in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [12] held that "it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error".
2. One essential prerequisite for the grant of leave to appeal is that "the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal": Sharpe v Heywood [2013] NSWCA 192 at [34].

1. An appeal before the Full Bench of the Commission is determined on the evidence and material adduced in the first instance proceedings, unless leave is given to adduce further evidence: s 191 of the IR Act. An appeal under the IR Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error or where there has been a demonstrable failure by the primary decision-maker to properly exercise the discretion afforded to them: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 at [10].

1. In assessing an application made pursuant to s 84 of the IR Act, the primary consideration for the Commission is whether the dismissal was harsh, unreasonable, or unjust: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 at [4].
2. The leading authority as to what constitutes a harsh, unreasonable or unjust termination is the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at [128]:

"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."

1. As stated by the Full Bench in Corrective Services NSW v Danwer (2013) 235 IR 215; [2013] NSWIRComm 61 at [21]:

"It has been said those words constitute a 'tautological trinity' (Davies v General Transport Development Pty Ltd [1967] AR (NSW) 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) 185 CLR 410; 61 IR 32, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'."

1. The onus of establishing that the dismissal was harsh, unreasonable, or unjust rests with the applicant: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279. Section 88 of the IR Act provides guidance as to the factors to which the Commission may have regard in determining that question: Paul Robert Taggart and Bell Sports Australia [1999] NSWIRComm 408 at [125].

1. During the appeal proceedings, the applicant suggested that the evidence in her proceedings was evidence in Mr Larter's proceedings and vice versa. However, while closing submissions in both proceedings at first instance were heard together for the sake of convenience, there was no order that evidence in Ms Larter's case was evidence in Mr Larter's case and vice versa. Evidence in the two proceedings was heard and received on an entirely separate basis. The Full Bench has proceeded on this basis for the purposes of both applications for leave to appeal and appeal.

1. The legislative framework of the vaccination requirements giving rise to the applicant's dismissal is set out in detail at [21]-[32] of Commissioner O'Sullivan's decision which is the subject of this appeal, and is reproduced below:

"Vaccination requirements

[21] The vaccination requirements giving rise to the applicant's dismissal were brought about by the following instruments:

(1) Public Health Act, made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (the "First PHO");

(2) Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (the "Second PHO"); and

(3) The Health Secretary's Determination No 33 of 2021 (the "Determination").

[22] The First and Second PHO were made by the Health Minister under s 7 of the Public Health Act 2010 (NSW), which provides:

7 POWER TO DEAL WITH PUBLIC HEALTH RISKS GENERALLY

(cf 1991 Act, s 5)

(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2) In those circumstances, the Minister--

(a) may take such action, and

(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary--

(a) to reduce or remove any risk to public health in the area, and

(b) to segregate or isolate inhabitants of the area, and

(c) to prevent, or conditionally permit, access to the area.

(4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order.

(5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order.

(6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989.

(7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions--

(a) any action taken by the Minister under this section other than the giving of a direction by an order under this section,

(b) any direction given by any such order.

[23] A contravention of a direction under s 7 constitutes an offence and s 10 of the Public Health Act 2010, provides for maximum fines and possible imprisonment for such a contravention.

[24] The Determination was said to be made pursuant to s 116A of the Health Services Act 1997 (NSW) (the "HS Act"), which is in the following terms:

116A SALARY, CONDITIONS ETC OF STAFF EMPLOYED IN THE NSW HEALTH SERVICE (OTHER THAN SENIOR EXECUTIVES)

(1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.

(2) The Health Secretary may give directions to a public health organisation requiring the payment by the organisation, on behalf of the Government of New South Wales, of the salary, wages and other employment-related costs (such as superannuation, workers compensation, public liability insurance and vicarious tortious liability) of those members of the NSW Health Service who are employed under this Part to enable the public health organisation to exercise its functions.

(3) The Health Secretary may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences.

(4) An agreement under subsection (3) binds all members of staff in the group or class affected by the agreement, and no such member, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement.

(5) This section does not apply to the conditions of employment of NSW Health Service senior executives under Part 3 of this Chapter. This subsection does not prevent particular conditions of employment under this section from being adopted by reference in the contract of employment of the executives.

[25] The directions in the First PHO were set out in clauses 4 and 5 as follows:

4 Directions of Minister for health care workers to be vaccinated

(1) The Minister directs that a health care worker must not do work as a health care worker unless-

(a) if the work is done on or after 30 September but before 30 November 2021- the worker has received at least 1 dose of a COVID-19 vaccine, or

(b) if the work is done on or after 30 November 2021-the worker has received at least 2 doses of a COVID-19 vaccine.

(2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker.

(3) Subclauses (1) and (2) do not apply to-

(a) a health practitioner who does work as a health care worker in response to a medical emergency, or

(b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak.

5 Direction of Minister for responsible persons for health care workers

The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause.

[26] Clause 6 provided an exemption from the direction in clause 4 for those health care workers who provide evidence that they were unable to receive the vaccination due to a medical contraindication.

[27] The First PHO was replaced by the Second PHO on 22 October 2021, which again included directions for health workers to be vaccinated or provide an exemption for medical contraindication. The direction was in a slightly different form to the First PHO, and was in the following terms:

5 Health care workers not to work unvaccinated

(1) A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVJD-19 vaccine.

(2) A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine.

(3) Subclauses (1) and (2) do not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract of service or a contract for services if -

(a) the work does not involve the provision of a health service within the meaning of the Health Services Act 1997, and

(b) the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health.

(4) A health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker.

(5) Subclauses (1), (2) and (4) do not apply to -

(a) a health practitioner who does work as a health care worker in response to a medical emergency, or

(b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak.

6 Responsible persons for health care workers

Each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 5 applies complies with the clause.

[28] The Determination was made on 12 November 2021, and mandated that it was a condition of employment for those employed in the NSW Health Service to have two doses of COVID-19 vaccine by 30 November 2021 or have provided a medical contraindication certificate.

[29] On 23 December 2021, the Third PHO took effect. It expanded the list of persons subject to the vaccination requirements beyond those employed by the respondent but otherwise maintained the vaccination requirements for health care workers and the exemption for medical contraindication.

[30] The Third PHO was repealed and replaced by the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 dated 21 March 2022 (the Fourth PHO). Which continued the Vaccination Requirements for public health workers and expired on 19 June 2022 and was not replaced.

[31] Additionally, on 28 July 2022 the respondent issued a NSW Health Policy Directive, "Occupational Assessment, Screening and Vaccination Against Specific Infectious Diseases" (the "Policy"), which also required employees of the respondent to be vaccinated for Covid-19.

[32] On 16 May 2024, the Commission was informed by the Respondent that the Determination had been rescinded and the Policy amended, such that the Vaccination Requirements were no longer mandatory, with immediate effect."

1. On 26 August 2021, an email was sent to all employees of the respondent, informing them of the vaccination requirements in the first Public Health Order (First PHO). That email stated that employees who had not received a COVID-19 vaccination or provided a medical contraindication form would not be able to work on and from 30 September 2021.
2. Between 21-23 September 2021, the applicant sent several emails to the respondent raising questions and concerns regarding the COVID-19 vaccination policy. She sought clarification as to whether her employment would be terminated. The respondent replied to these emails. In one such reply, Ms Sarah Chambers confirmed the earlier advice and stated that affected employees would be contacted and provided with next steps concerning the ending of their employment on 30 September 2021.
3. On 15 October 2021, the applicant received a letter from the respondent (First Show Cause Letter) which included the following content:

"Despite having been given a reasonable period of notice, you do not meet vaccination/medical contraindication requirements, and accordingly are unable to perform your role/work in the NSW Health Service. Accordingly, NSW Health is considering the viability of your future employment, including whether to terminate your employment."

1. The applicant was invited to provide submissions as to why her employment should not be terminated. She responded to that letter on 29 October 2021. Her response included the fact that she was not in contravention of the First PHO as it only prohibited the performance of work, and she was not working. The applicant also stated that she was able to work from home and noted the financial hardship to her family as a result of her being unable to work.
2. The applicant received another letter from the respondent on 18 November 2021 (Second Show Cause Letter) which included the following content:

"That Public Health Order has now been rescinded and replaced by the Public Health (Covid-19 Vaccination of Health Care Workers) Order (No 2) (Public Health Order No 2). It contains the same vaccination requirements for NSW Health employees as the Public Health Order it replaced. Specifically, it continues to direct that a health care worker must not do work as a health care worker unless the worker has received at least 1 dose of an approved COVID-19 vaccine or two doses by 30 November 2021."

1. At the time of the proceedings at first instance, the applicant was employed in a casual part-time role as a Crew Member at McDonald's Tumut. There was evidence before the Commission about the significant financial impact which the loss of her employment (together with that of her husband) had had upon her family, including their six children.

1. In the decision below at [52], Commissioner O'Sullivan found that evidence of the subsequent recission of the vaccination requirements on and from 16 May 2024 was not relevant to the determination of the question of whether the applicant's dismissal was harsh, unreasonable or unjust.
2. The Commissioner found at [81]-[83] that the applicant had been dismissed in part because of her alleged failure to comply with the second Public Health Order (Second PHO) in the sense that she failed to become vaccinated. Further, as the Second PHO did not, in terms, require the applicant to be vaccinated against COVID-19, but instead placed an obligation on her employer to prohibit her from working until she became vaccinated or received a medical contraindication, the Commissioner effectively held that to terminate the applicant's employment on that ground alone would be unjust. However, the Commissioner determined at [129] that the Health Secretary's Determination No 33 of 2021 (the Determination) provided a proper basis for the dismissal, such that the applicant's dismissal was not unfair for the purposes of the IR Act.
3. The Commissioner at [113] rejected the applicant's claim that the Determination was unlawful or invalid.
4. Commissioner O'Sullivan also considered the applicant's claims of procedural unfairness, finding at [122] that her submission that she was not given notice of the matters relied upon by the respondent in its decision to terminate her had "no evidentiary basis". After noting that the applicant had not responded to the Second Show Cause Letter, the Commissioner was nevertheless satisfied at [123] by the evidence of Ms Anne McLeish that the respondent did consider the applicant's response to the First Show Cause Letter. As a result, Commissioner O'Sullivan rejected the applicant's claims of procedural unfairness at [124].
5. Finally, the Commissioner considered the question of whether the applicant's dismissal was harsh. Weighing up all of the circumstances, including both the effect of the dismissal upon the applicant as well as the reasons for it, the Commissioner determined at [128] that the applicant's dismissal was not harsh "for the purposes of the IR Act". In so doing, the Commissioner noted that the applicant was in the same position as other employees in facing the loss of her employment unless she could meet the vaccination requirements and that the harshness visited upon her was partly the consequences of her own choice to remain unvaccinated, the reasons for which did not bear upon the Commission's consideration of her application.
6. In light of these findings, Commissioner O'Sullivan determined that the applicant's dismissal was not unfair for the purposes of the IR Act and dismissed the application.

1. The applicant relies upon seven appeal grounds as follows:[3]

"1. The Commissioner erred (at [129]) by finding that the applicant had not established that the dismissal was unfair or harsh.

2. The Commissioner erred by finding that Direction 33 was lawful.

3. The Commissioner erred by finding that the applicant had not made out that the decision was procedurally unfair.

4. The Commissioner erred in finding that the applicant had not established that the dismissal was harsh.

5. The Commissioner erred for finding that there was no basis for the employer to consider the decision maker should have been called when the reasons for the decision to terminate the employee were always and must be in issue contrary to the approach taken in Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 at [82].

6. The Commissioner erred by finding that decision was not unfair for the purposes of the IR Act.

7. The Commissioner erred by failing to award any remedy to the applicant and by dismissing the application."

1. Each of Grounds 1-4 was particularised in some detail. We do not propose to reproduce those particulars here. They are considered, to the extent necessary, when addressing each of the relevant grounds below.
2. In addition, under the heading "Reasons Why Leave to Appeal Should Be Granted", the application sets out what are described as "important issues of law and policy not previously ventilated at the appellate level". It then sets out two "questions of law", the first of which comprises a number of particular questions concerning the application of the Public Health Act 2010 (NSW) (PH Act) and the Health Services Act 1997 (NSW) (HS Act), together with a question as to the availability of an inference that the evidence of a decision-maker who was not called to give evidence would not assist the party seeking to maintain that decision. The second "question of law" is framed broadly in terms of whether the Commission erred in its ultimate determination of the matter.
3. The question of leave to appeal is not determined in isolation from the merits of the grounds of appeal agitated by an applicant. We address the issues raised in this section of the application to the extent that they are raised by the appeal grounds as pleaded.
4. In their written submissions, both parties purported to adopt portions of their submissions at first instance. Those submissions in turn partly consisted of statements adopting some of the submissions made on behalf of and in the proceedings relating to the applicant's husband, Mr John Larter. This rendered the arguments of both parties particularly difficult and time-consuming to access. The applicant did not clearly or consistently identify the submissions made in Mr Larter's proceedings on which she relied. Instead, where this was not clarified in oral submissions, the Full Bench was required to go searching for the substance of the applicant's submissions and to infer her reliance on Mr Larter's submissions from the applicant's reference to paragraphs of "closing submissions" which did not appear in the material filed in her proceedings but, instead, were to be found in the material filed in Mr Larter's appeal.
5. Parties to an appeal are required to articulate clearly the substance of their respective cases in their written submissions. Modern technology greatly facilitates the reproduction and appropriate reformulation or adaptation of first instance material to the extent that this material is relied upon on appeal. We observe that the approach to written submissions on appeal consisting merely of statements adopting parts of the submissions that were made at first instance or elsewhere in a manner that sheds no or dim light on the substance of a party's case does not assist the Full Bench to readily access and understand a party's case on appeal. This approach does not assist a just, quick and cheap resolution of the real issues in the proceedings and is to be deprecated.
6. In addition, the applicant's written submissions frequently extended beyond the scope of the relevant ground as particularised in the applicant's Notice of Appeal. As the respondent did not object to those submissions, but instead addressed them, the Commission has considered these submissions in the course of this decision, as indicated. However, it should not be assumed that the Commission would invariably take this course: cf. Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 at [7].

1. This ground challenges the Commissioner's ultimate determination at [129] that the applicant had not met her onus of establishing that her dismissal was unfair or harsh. The ground asserts the following collection of disparate particulars and alleged errors in the Commissioner's reasoning:

"(1) The Commissioner erred by misidentifying the issue - namely that the reason for dismissal would only be unfair or harsh if the applicant established that the Determination was invalid (at [127]).

(2) The Commissioner erred by finding that the evidence supported a dissection of the reasons as between non-compliance with the PHO and inability to return to work and the finding was against the evidence.

(3) To the extent that his Honour (sic) had regard to the Respondent's submission recorded at [128] that "the harshness visited upon herself is partly a consequence of her own choice and thus does not render the dismissal harsh for the purposes of the IR Act":

(a) The Commissioner failed to have regard to the limited time nature of the statutory scheme under the Public Health Act and the extraordinary nature of the pandemic;

(b) The Commissioner failed to have regard to the absence of any evidence from the respondent's decision maker establishing that they had no expectation that the applicant would be able to work in the future; and

(c) The Commissioner failed to have regard to and rejected evidence of public comments by the Premier of New South Wales that established the NSW Government considered the restrictions on employees who had not been vaccinated to be lifted.

(4) The Commissioner failed to properly construe the Public Health Orders by finding that they prevented the applicant from returning to work, when on a proper construction they required the employer to direct the applicant to not attend work and at all times she was complying with his (sic) obligations in his (sic) employment.

(5) The Commissioner erred (at [52]) by finding that there was no reason for the employer to consider that the PHO's would abate at any point in the future such that the applicant could return to work by failing to have regard to (or give reasons for dismissing) the temporally limited and extraordinary nature of the statutory scheme contained in the Public Health Act."

1. In her written submissions, the applicant stated that she relied upon the particulars provided in relation to this ground of appeal, but only advanced the following four reasons in support of this ground:

(1) Firstly, the Second PHO did not require the applicant to be vaccinated, but instead required her employer to direct her not to attend work while she was not vaccinated. Consequently, her termination for failing to comply with the Second PHO was unjust (as found by Commissioner O'Sullivan). This error infected the First Show Cause Notice and therefore the entire process which flowed from it.

(2) Secondly, Commissioner O'Sullivan erred by failing to appreciate that the Second PHO conferred an obligation on the respondent to make a positive direction on the applicant not to attend work. Further, no occasion could arise for the respondent to give any other command (such as the Determination) in relation to work which the applicant had properly been directed not to perform.

(3) Thirdly, properly understood, the "prohibition upon an employer directing an employee to do work" applied for 90-day periods, with no expectation that they would be extended.

(4) Fourthly, the Commissioner's finding that the applicant's employment was terminated in an unjust manner ought to have been fatal to the respondent's case and resulted in the applicant being awarded a remedy in respect of her dismissal.

1. Central to the resolution of this ground and the reasons on which the applicant relies in support of it, is the operation of the Second PHO. Accordingly, it is to that subject that we now turn.

1. The applicant characterised the Second PHO, being the PHO in operation at the time of Ms Larter's dismissal, as requiring the employer to direct an unvaccinated employee not to perform any work. She asserted that, practically speaking, an employee cannot work pursuant to his or her employment contract while they are directed not to do so.
2. Based on this characterisation, the applicant submitted that the health care worker's obligations pursuant to cl 5 of the Second PHO "don't practically arise because the obligation in 6 [which falls on the employer] supersedes them in time". It was submitted that cl 5 of the Second PHO applied to an employee only "if an errant or recalcitrant employee, notwithstanding the direction not to attend work, showed up at the office". It was also said to apply to health care workers who were not employees, as they could not be stood down or directed not to attend work.
3. This proposition underpinned the applicant's submission that, because the Second PHO did not require vaccination as a condition of work and instead prohibited employers from allowing or requiring unvaccinated employees to attend work, the applicant's conduct was properly characterised as simply and innocently complying with her employer's direction to not attend work.
4. We reject that submission. The plain terms of the Second PHO clearly demonstrate that it also - and indeed primarily - prohibited unvaccinated employees from attending or performing work, thus making vaccination a necessary precondition to the performance of work (but without in terms requiring employees to be vaccinated). Clause 6 of the Second PHO required the person responsible for the health care worker to "take all reasonable steps to ensure" that the health care worker met their obligations under cl 5 of that PHO. The obligation under cl 6 on which the applicant relies was thus ancillary to the health care worker's obligation in cl 5. In this case, the step taken by the respondent to ensure that the applicant complied with her obligation under the PHO was to direct unvaccinated employees not to attend work.
5. The applicant's submission that she had merely complied with her employer's direction not to attend work conceals her antecedent and critical contribution to the basis for her dismissal, namely, her choice to be unvaccinated and thereby to render herself unable to fulfil the condition imposed by the Determination on her continued employment as a health care worker. So far as concerns the operation of the Second PHO, the applicant's choice to remain unvaccinated also exposed her to the prohibition against her performing any work as a health care worker that, properly understood, was imposed directly on her by the Second PHO.
6. Accordingly, the first and second reasons advanced by the applicant in support of this ground must fail.
7. The applicant contends, in her fourth reason at [36(4)] above, that the Commissioner's finding that the applicant's dismissal for failure to comply with the Second PHO was unjust should have rendered her application successful. The applicant submits that the operation of the Determination cannot save a termination that was in fact effected on the basis of an incorrect premise.
8. We do not agree with Commissioner O'Sullivan's conclusion at [81]-[83] that the applicant was dismissed for failing to comply with the Second PHO in the sense that she had "contravened" it by failing to become vaccinated against COVID-19. We accept that the Public Health Orders (PHOs) did not in terms require the applicant to be so vaccinated. Instead, they prevented her from performing work whilst she remained unvaccinated; and the terms of the First and Second Show Cause Letters, extracts from which are set out above, make clear that the applicant's employment was in question not because of the vaccination status per se but because, by reason of her unvaccinated status, she was unable to perform any work.
9. Properly understood, the evidence of Ms McLeish that the applicant was "not compliant with" the PHOs (and that this was a view shared by the Chief Executive) was more likely an expression in ordinary parlance of the notion that the applicant had failed to meet the vaccination requirements referred to in the PHOs for the purpose of enabling her to perform work in a manner sanctioned by the PHOs. Indeed, the first sentence under the heading "Recommendation to Terminate Employment" in the brief which Ms McLeish provided to the Chief Executive stated that the applicant was unable to work in the NSW Health Service without breaching the PHOs.
10. However, no Notice of Contention was filed with respect to Commissioner O'Sullivan's conclusion at [81]-[83]. We have therefore proceeded on the basis of Commissioner O'Sullivan's finding that the applicant was dismissed, in part because she failed to comply with the Second PHO.
11. Accepting this finding, we note that the reasons under challenge must be read as a whole and must be considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6, as applied in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) [1999] NSWIRComm 341; (1999) 90 IR 432 at 458; [1999] NSWIRComm 341. With this approach in mind, we observe that Commissioner O'Sullivan expressly stated at [81] that the applicant's failure to comply with the Second PHO was only "one of_"_ the reasons for her dismissal. The Commissioner then proceeded to find that termination of the applicant for that reason was flawed and "unjust". This finding, however, must be read in the context of the Commissioner's conclusion at [129] that "the Determination provided a proper basis for the dismissal and the dismissal was not procedurally unfair nor harsh". Although the Commissioner's reasoning on this point might have been expressed in clearer terms, he ultimately considered the correct question, namely, whether the dismissal of the applicant was harsh, unreasonable or unjust and therefore unfair.
12. It was open to Commissioner O'Sullivan to find that, in all the circumstances, the dismissal was not unjust because it was properly justified by the operation of the Determination, notwithstanding the perceived difficulty and resulting element of "unjustness" he identified with one of the other reasons given by the respondent relating to the Second PHO. In our view, a fair consideration of the whole of the reasons demonstrates that this is what the Commissioner concluded.
13. Furthermore, the respondent was not confined to the reason given to the applicant which rested on the Second PHO. For the purposes of unfair dismissal proceedings under the IR Act it has long been recognised that an employer dismissing an employee is not confined necessarily to the reasons advanced to the employee at the time of dismissal.[4]
14. Support for this approach is derived from the common law principle, originating in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 377-378; [1931] HCA 21, that reliance on an invalid ground to terminate a contract does not preclude reliance on a valid ground. In the context of unfair dismissal proceedings, this approach generally has been applied in circumstances where a dismissal is justified by an employer's subsequent reliance on circumstances that existed at the time of dismissal of which the employer was not aware.[5] This is likely to be because "[w]here a valid ground of termination is available, a terminating party normally relies on an invalid ground only because of unawareness of the valid ground".[6] However, the underlying common law principle remains unclear as to whether it extends to circumstances in which the terminating party was aware of a valid ground, but nevertheless relied on an invalid ground. Some authorities contain express statements that a valid ground may be relied on whether or not the terminating party was aware of it at the time of reliance on an invalid ground;[7] or otherwise articulate the Shepherd principle without advertence to the issue of awareness as a disqualifying factor.[8] Lack of awareness has been treated as a pre-requisite in other cases.[9]
15. However, the facts in this proceeding do not require a resolution of this controversy. The Shepherd principle clearly enables a party to effectively terminate a contract by specifying an invalid ground together with a valid ground.[10] Here, the respondent contemporaneously and explicitly relied upon the operation of the Determination to justify the applicant's dismissal. The respondent was not confined to its reliance on the Second PHO.
16. Furthermore, there was nothing inherently unjust or unfair about the respondent's decision to terminate the employment of an employee who chose to remain unvaccinated in circumstances where the Determination made her continuing employment conditional upon receiving the relevant vaccinations.
17. To the extent that the first reason set out above at [36(1)] includes a complaint about procedural unfairness, this is addressed in the context of Ground 3.
18. Although it is unclear to what extent the second reason impugns the lawfulness of the Determination, we address this issue in the context of Ground 2 in which it is squarely raised. We have otherwise dealt with the second reason above (to the extent that it concerns the interpretation of the PHO asserted by the applicant).
19. The third reason set out above at [36(3)] (which appears to be related to the third particular at [35]) concerns the time-limited nature of the operation of the Second PHO. Although unclear, it appears to be directed at Commissioner O'Sullivan's finding that the termination of the applicant's employment was not harsh. The asserted failure of the Commissioner to consider the time-restricted operation of the Second PHO was not however pleaded in the context of Ground 4 (which is directed at Commissioner O'Sullivan's failure to find that the dismissal was harsh).
20. Contrary to the applicant's suggestion, the validity of Commissioner O'Sullivan's finding at [128] that the harshness visited upon the applicant was partly a consequence of her own choice was not dependent upon evidence that the respondent's decision-maker had "no expectation that the applicant would be able to work in the future". In order to justify the dismissal, the respondent's decision-maker was not required to demonstrate that they had no expectation of the applicant returning to work at some future point. The respondent could not have known how long it would be before the applicant would be able to return to work. The similarity of the Second PHO, in force at the time of the applicant's dismissal, to the First PHO, demonstrates the ineffectiveness of the 90-day limitation on its operation as a reliable indicator of the time for which the applicant would be prohibited from performing work while unvaccinated.
21. Further, there was no evidence before the Commission which would permit a finding, even on the balance of probabilities, that the respondent considered vaccination requirements for employees had been or soon would be lifted at the time of the termination decision. The comments made by the NSW Premier, upon which the applicant seeks to rely, postdate her dismissal and are therefore not relevant to the fairness of the decision to terminate her employment.[11]
22. The error asserted in the second particular referred to in [35] above is difficult to understand. It perhaps asserts that the evidence before the Commission did not permit the Commissioner to distinguish between the applicant's non-compliance with the Second PHO and her inability to return to work such that any reliance on the Second PHO to justify her dismissal must proceed on the erroneous understanding that the Second PHO in terms required her to be vaccinated. If so, this particular refers to a finding made in another proceeding and does not belong in the applicant's appeal grounds.12[12]n the applicant's matter, Commissioner O'Sullivan made no such distinction. Instead, the Commissioner accepted that one of the reasons for the applicant's termination was her asserted failure to comply with the PHOs by refusing to be vaccinated against COVID-19. The Commissioner then accepted that the respondent's reliance on this reason to justify her dismissal was misconceived. This was consistent with the submissions made by the applicant at first instance. As noted at [45]-[47] above, although we disagree with the Commissioner's finding in this regard we have proceeded to determine this application on the footing that the finding is unchallenged.
23. Finally, we note that the fifth particular referred to in [35] above is misconceived. The findings at [52] of the Commissioner's decision are directed to the operation of the Determination and not to the PHO. The inability of the respondent to know how long the Determination would be in place was a matter that the Commissioner could (and did) consider in dismissing the application before him. To the extent that the applicant relies upon the time-limited nature of the Second PHO, we have addressed that issue at [56] above.
24. For these reasons, Ground 1 fails to establish that the Commissioner's decision is attended with sufficient doubt to warrant its reconsideration on appeal. Accordingly, we refuse leave to appeal on this ground.

1. This ground challenges the Commissioner's finding at [113] that the Determination was lawful, based on the construction of s 116A of the HS Act. Section 116A is set out in [15(24)] above. The particulars of Ground 2 are stated in the following terms:

"(1) The Commissioner erred by finding that s 116A(1) of the HS Act could be read separately from and independently from the condition on the power contained in s 116A(3).

(2) The Commissioner erred by construing s 116A as extending to unilateral determinations to impose negative stipulations which would exclude the employment relationship rather than to allow for the setting of conditions to be applied to ongoing employment.

(3) The Commissioner erred by misconstruing the relevant PHO as imposing a prohibition on employers from permitting employees to work, when on a proper construction, it imposed a positive duty on employers to direct employees not to attend work or roster them off such that the employee was at all relevant times compliant with their obligations under the employment contract and the employment was not frustrated."

1. In her written submissions, the applicant repeated her submissions at first instance by advancing the following four reasons in support of this ground:

(1) Firstly, the power in s 116A(1) of the HS Act to fix conditions of employment is subject to the requirement in s 116A(3) such that s 116A(1) does not empower the Secretary to unilaterally alter existing conditions of employment and any change in conditions must be by agreement with an organisation representing the relevant employees.

(2) Secondly, in the alternative to the reason in (1) above, the Commissioner's finding at [109] that the requirement in the Determination for employees to be vaccinated was a "condition of employment" was erroneous. The applicant argued that this requirement was not a "condition of employment" in the ordinary sense (and, presumably, for the purposes of s 116A(1)) because it did not relate to the relationship between the employer and employee and did not "delineate the scope of the work-wages bargain".

(3) Thirdly, in the alternative to the reason in (2) above, the Determination "plainly replicated the same requirement as set out in PHO 2" (i.e., imposing the condition for workers to be vaccinated) and thus the Determination fixed a condition that was already fixed under another law contrary to s 116A(1), and in that regard, the Commissioner's finding at [112] that the vaccination requirement in the Second PHO was not a "condition of employment" was also erroneous.

(4) Fourthly, in the alternative to the reason in (3) above, the Determination was invalid because it required a worker to be vaccinated and so went beyond the scope of the PHOs, which did not do this.

1. We address each of these reasons in turn.
2. Commissioner O'Sullivan addressed the first aspect of the applicant's argument in relation to s 116A of the HS Act as follows:

"[106] As to the first basis as to unlawfulness raised by the applicant, the interpretation advanced is contrary to the plain and ordinary meaning of the provision.

[107] Each of subsections (1) and (3) under s116A contemplates a different basis upon which the respondent can make a determination, either by unilateral change of conditions of employment as in s116A(1) determined by Walton J in [Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431] or in s116A(3) by agreement with an association or group of employees."

1. We agree with the Commissioner's determination in this regard. In Secretary of the Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431 (APA Case), Walton J observed that the power in s 116A(1) can be exercised by the Secretary unilaterally, and that the power enables the Secretary to change conditions of employment unilaterally at any time:

"[143] The power in s 116A(1) of the HS Act is a distinct and separate power to the power to enter into contracts of employment. This is clear from the ordinary and natural meaning of the text and its purpose. This view is also confirmed by the legislative history and past authorities of the Commission.

[144] As set out above, s 116A(1) of the HS Act gives the Secretary the power to 'fix' salary, wages and conditions of employment. This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise.

...

[146] The purpose of the power in s 116A(1) is 'to ensure a high measure of consistency in a large and diverse public sector organisation': NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees."

1. Section 116A(1) thus authorises the Secretary to alter conditions of employment without the assent of the employees concerned (or the industrial organisation representing them).
2. The applicant points to APA Case at [153] in which Walton J also said that "it can be assumed that the Secretary would not enter into any contracts of employment that conflict with the conditions of employment" fixed under s 116A(1). However, nothing in this passage supports the contention that s 116A(3) constrains the power under s 116A(1). His Honour's assumption that the Secretary would not enter into any contracts of employment that conflict with such conditions of employment does not detract from and is not inconsistent with his prior characterisation of the nature of the power under s 116(1) which can be used to change conditions of employment unilaterally at any time.
3. The applicant's second contention that the Determination did not impose a condition of employment must also be rejected. As submitted by the respondent at first instance, the HS Act and the IR Act were enacted in circumstances that they may be considered to be "cognate": Health Administration Corporation v Crocker (2004) 138 IR 147; [2004] NSWIRComm 163 at [10]. Accordingly, the words "may fix the salary, wages and conditions of employment of staff" in s 116A(1) of the HS Act are to be construed broadly, consistent with the definition of "conditions of employment" and the definition of "industrial matter" in ss 4 and 6 of the IR Act.
4. The applicant also relies on the concept of "conditions of employment" in the IR Act in support of her contention that "conditions of employment" are a subset of "industrial matters" that do not include the matters relating to the termination of employment in s 6(2)(e) of the IR Act. That submission cannot be accepted in circumstances where the Dictionary to the IR Act expressly defines "conditions of employment" as including "any provisions about an industrial matter" which itself is defined broadly in s 6(1) and of which "termination of employment" is explicitly nominated as an example: s 6(2)(e). Furthermore, the Commission makes awards setting "conditions of employment" pursuant to s 10 of the IR Act. These awards commonly deal with rights and obligations relating to the termination of employment, which are clearly "conditions of employment" broadly defined.
5. As acknowledged by the Full Bench in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284; [2003] NSWIRComm 404 at [150] relying on

Re Review of the Principles for Approval of Enterprise Agreements 2002 (2002) 121 IR 144; [2002] NSWIRComm 342 (Re Review), there is some "circuitousness" in the relevant IR Act provisions. However, having acknowledged this, the Commission in Re Review continued as follows at [20]:

"... As against this, however, we note that, unlike the majority of definitions contained within the Dictionary to the Industrial Relations Act, the definition of conditions of employment is an inclusive one rather than exclusive and that s 6(2) provides examples only of industrial matters. All of this leads on a prima facie basis to a conclusion that the expression 'conditions of employment' should be construed according to its ordinary meaning within the context of legislation which is directed in general terms to providing a framework for the conduct of industrial relations and to enhance, in general terms industrial relations throughout New South Wales. This much is clear from s 3 of the Act which sets out its objects..."

1. Ultimately, the Commission held that the term "conditions of employment" may convey different things according to the context in which it is used and that it was not appropriate to determine the extent and meaning of the expression "conditions of employment" in the absence of a relevant factual matrix. Accepting that qualification, it is nonetheless relevant that rights and obligations in relation to termination of employment have long been treated as conditions of employment: Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; (1983) 152 CLR 632 at 649; [1983] HCA 28; Compass Group (Australia) Pty Ltd v Bartram (2007) 161 IR 307; [2007] FCAFC 26 at [32]. In addition, this Commission has repeatedly accepted that the vaccination requirement (enforced by the termination of those who do not meet its terms) contained within the Determination falls within the scope of s 116A(1).[13]
2. The balance of the applicant's submissions on Ground 2 do not address the remaining allegation that the Commissioner misconstrued the Second PHO referred to in [62] above. The relevance of this particular to Ground 2 (which is directed exclusively to the lawfulness of the Determination) is not apparent. In any case, we have addressed the substance of the contention that the Commissioner misconstrued the Second PHO in the context of Ground 1.
3. The additional (third and fourth) contentions raised by the applicant in the course of her written submissions, to which the respondent made no objection, are set out at [63] above. Accordingly, for completeness, we make the following observations.
4. The applicant's alternative and third contention that the Determination addressed an employment condition that was already fixed by the Second PHO contrary to s 116A(1) of the HS Act must also be rejected. The PHOs were not made for the purpose of, and did not have the effect of, fixing conditions of employment for members of the NSW Health Service. Rather, they were temporary orders made by the Minister for Health and Medical Research pursuant to s 7 of the PH Act to deal with a risk to public health. As submitted by the respondent, s 7 of the PH Act does not confer upon the Minister a right to fix conditions of employment of members of the NSW Health Service.
5. In addition, the PHOs "make no provision for the termination of the services of workers who are prevented from working by reason of not having been vaccinated" and "are concerned with preventing those who were not vaccinated from working for NSW Health": Larter v Hazzard (No 2) [2021] NSWSC 1451 at [95]. Thus, the PHOs made the performance of work conditional on the employee being vaccinated, whereas the Determination made continued employment conditional upon the employee being vaccinated. The vaccination requirement is thus attached to two distinct aspects of the employment relationship.
6. As the applicant herself recognised in the context of Ground 1, the PHOs did not impose any condition requiring health care workers to be vaccinated as such: Kassam v Hazzard (2021) 393 ALR 664; [2021] NSWSC 1320 at [9]. Therefore, contrary to the applicant's submission in support of this ground, such a requirement cannot have been common to both the PHOs and the Determination.
7. Finally, as to the submission that the Determination exceeded the scope of the Second PHO, the applicant does not explain why the validity of the Determination necessarily depends upon it falling within the scope of the Second PHO. We are not aware of any basis for this contention.
8. Furthermore, although the precise terms of this submission remain unclear, the applicant appears to suggest that the Determination is invalid because it proceeded on an erroneous assumption that the Second PHO itself required the employee to be vaccinated "or as meaning that an employee was incapable of attending work", whereas (on the applicant's case) the Second PHO merely required the employer to direct the unvaccinated employee to not perform any work. For the reasons we have explained in the context of Ground 1, the applicant's characterisation of the Second PHO does not withstand scrutiny.
9. Given the broader public interest in the construction of s 116A of the HS Act, we grant leave in respect of this ground of appeal. However, for the reasons we have given, we find that Ground 2 is not made out.

1. This ground impugns the Commissioner's finding at [124] that the applicant had not established procedural unfairness. The particulars of Ground 3 are stated in the following terms:

"(1) The Commissioner failed to have regard to the full terms of the First and Second Show Cause Notices and gave a summary of the contents of the Second Show Cause letter which failed to address the contrast between the respondent's express request for submissions and warning on the effect of the PHO but not do so in relation to the Determination.

(2) The Commissioner impermissibly had regard to evidence from the applicant for the purposes of the Commission proceedings about his (sic) state of knowledge after the termination decision to establish a state of knowledge or opportunity to comment prior to the decision and thereby was misdirected as whether the employer provided procedural fairness prior to the dismissal.

(3) The Commissioner erred by relying on the applicant's failure to respond to the second show cause notice (which did not put him on notice about the Determination issue) as evidence that there was no denial of procedural fairness which finding is circular."

1. The applicant repeated her submissions at first instance by advancing the following four reasons in support of this ground:

(1) Firstly, the respondent's erroneous understanding of the Second PHO infected its entire process. It was reflected in the First Show Cause Letter, and the Second Show Cause Letter did not rectify the unlawfulness of the First Show Cause Letter. Further, by making reference to the Determination it "moved the goalposts" in relation to terminating the applicant's employment.

(2) Secondly, the content of the Second Show Cause Letter did not specify how the applicant was in breach of the Determination when she was complying with the employer's direction not to work while unvaccinated. Nor did the Second Show Cause letter:

"elucidate the implications of the Applicant's employment arising out of Determination 33 as distinct from the Second PHO or what information the Chief Executive would consider in relation to Determination 33 as distinct from the PHO if he were to terminate her employment."

(3) Thirdly, the respondent did not consider the applicant's individual circumstances when making the decision to terminate her employment, including whether it would be harsh or unjust or unreasonable or whether the COVID-19 pandemic actually required the dismissal of the applicant to curtail the risk of transmission.

(4) Fourthly, the applicant was not afforded procedural fairness because she did not have notice of the fact that the Chief Executive would consider Determination 33 as part of the formal dismissal process defined by the Second Show Cause Letter.

1. The applicant also expressly relied upon the oral submissions made in relation to correspondence concerning the termination of her husband, including his termination letter, which are plainly irrelevant to her.
2. This ground lacks merit. The first, second and fourth reasons upon which the applicant relies can be dealt with together. The assertion, in the fourth reason above, that the applicant was not afforded procedural fairness because she had no notice of the fact that the respondent would consider the Determination as part of the dismissal process is not borne out by the evidence. As the first and second reasons acknowledge, the applicant was provided with the Determination. The Second Show Cause Letter both referred to and attached the Determination and sought the applicant's response to it. Accordingly, the basis for the applicant's dismissal was articulated to her and she was provided with an opportunity to respond to the asserted reason for dismissal.
3. The third reason set out at [82(3)] above overlaps with Ground 4 and will be addressed in that context.
4. The applicant did not make any submissions in support of the second and third particulars set out at [81] above. In relation to the second particular, that is unsurprising. At no point in addressing the question of procedural fairness (at [114]-[124]) did Commissioner O'Sullivan consider the applicant's state of knowledge following the termination of her employment. Indeed, the reference in the application to "his" state of knowledge would suggest that this particular was not in truth directed to the applicant's proceedings at all (and instead was transplanted from Mr Larter's appeal).
5. The third particular appears similarly directed to a different proceeding (i.e., Mr Larter's appeal) to the extent that it asserts that the Second Show Cause Letter "did not put him (sic) on notice about the Determination issue". In any event, the reference to the failure of the applicant to respond to the Second Show Cause Letter at [123] merely records the material (or lack of it) before the Chief Executive for consideration. Commissioner O'Sullivan went on in that paragraph of his decision to make an express finding that the respondent considered both the applicant's response to the First Show Cause Letter as well as the applicant's individual circumstances by reference to the content of the termination brief provided to the Chief Executive.
6. Leave in respect of this ground of appeal is refused.

1. The applicant contends that the Commissioner erred in finding that the applicant had not established that her dismissal was harsh for reasons which she particularised as follows:

"(1) The Commissioner made no reference to the Applicant's personal circumstances which included:

(a) That she had no income after she was terminated from employment

(b) She had mortgages and six children to support

(c) She was working at McDonalds cleaning toilets

(2) The Commissioner failed to have regard to the applicant's submissions that the dismissal was harsh because the evidence was that as at 9 December 2021, those who were compliant with the vaccination requirements would have no less risk of transmitting COVID-19 in the workplace compared with the applicant.

(3) The Commissioner failed to have regard to the evidence that as at the date of her dismissal on 9 December 2021, the NSW Government had firmly indicated that it would be easing restrictions in the State."

1. In her written submissions, the applicant repeated her submissions at first instance and advanced the following five reasons in support of this ground:

(1) Firstly, the finding at [128] and [129] that the dismissal was not harsh for the purposes of the IR Act was incongruent with the finding at [125] that the dismissal was "otherwise harsh in view of the Applicant's unblemished and longstanding record of service and significant hardship arising from the termination of her employment".

(2) Secondly, the decision failed to take into account a number of material considerations that favoured the applicant. The decision also replicated word for word the same reasons and grounds at paragraphs [125]-[129] which were contained in the decision of Larter v Health Secretary in respect of NSW Ambulance [2024] NSWIRComm 1030 at [118]-[122] and it appears that no proper consideration was given to the individual circumstances of the applicant. These included that:

"(a) she was the mother of six children;

(b) that she was working part time as a crew member at McDonalds;

(c) her husband also lost his career and was working part time at McDonalds;

(d) she was now under financial strain with no savings and accumulating debts;

(e) the family income had reduced from $220,000 per year down to approximately $50,000;

(f) she had to cancel specialist appointments with surgeons due to financial constraints and hardship and could not keep up music lessons, sport or social activities for her children and was unable to

(g) she had applied for multiple mental health positions in the community after her termination but was unable to obtain employment due to vaccine mandates."

(Footnotes omitted)

(3) Thirdly, the Commissioner's finding, at [128] that the "harshness" was brought upon by the applicant herself by declining to receive a COVID-19 vaccine was misconceived, as the applicant was not required to be vaccinated and she was not in contravention of the Second PHO in failing to do so.

(4) Fourthly, the Commissioner also erred in failing to consider whether the applicant could have been allowed other alternatives to dismissal including the taking and using up of her leave entitlements, including leave without pay.

(5) Fifthly, the Commissioner failed to have regard to the applicant's submissions that dismissal was harsh because the evidence was that as at 6 December 2021, those who were compliant with the vaccination requirements would have no less risk of transmitting COVID-19 in the workplace compared with the applicant.

1. We deal with each of those reasons in turn.
2. The submission that the Commissioner's finding at [125] that the dismissal was otherwise harsh is inconsistent with the findings at [128] and [129] that it was not harsh for the purposes of the IR Act should be rejected. Read in context, it is tolerably clear that [125] and [126] were intended to set out the applicant's and respondent's ("[f]or its' (sic) part") contentions respectively.
3. The second reason advanced by the applicant, set out in [90] above, is that material factors which were particular to her circumstances were not considered properly or at all. Commissioner O'Sullivan correctly identified that the question of harshness is considered by weighing up all the circumstances, including the reason for the dismissal, citing Welch v Commissioner of Police [2023] NSWIRComm 1002 at [74]-[75]. At [128], the Commissioner expressly referred to the harshness visited upon the applicant personally, noting that it was partly a consequence of choices that she had made. We also note that Commissioner O'Sullivan had earlier made express reference at [36] to the applicant's submission to the respondent concerning the financial hardship that she and her family were suffering because of her being unable to work. We are satisfied that the Commissioner undertook the task that he acknowledged he was bound to undertake, notwithstanding the brevity of his reasons in this regard.
4. The premise underlying the third reason advanced by the applicant, set out in [90(3)] above, has been addressed in the context of Ground 1. While the Second PHO did not in terms require her to be vaccinated, it was the applicant's decision not to be vaccinated which led, in part, to the termination of her employment. There was no error in the finding of the Commissioner to that effect.
5. As to the fourth reason advanced by the applicant, there was no evidence before the Commission that she had sought and been refused access to her leave entitlements. At the time of her response to the First Show Cause Letter, she was on leave without pay. Leave without pay is not an employee entitlement. Accordingly, the Commissioner did not err in failing to have regard to the availability of the applicant to remain in employment by way of access to either paid or unpaid leave.
6. Further, we note that Commissioner O'Sullivan correctly found that evidence of the recission of the Determination on 16 May 2024 was not relevant to the question of whether the applicant's dismissal was unfair. Such evidence would not have assisted the applicant in any event, as the recission of the Determination came more than two years after the applicant's dismissal.
7. As to the final reason advanced by the applicant, we note that Commissioner O'Sullivan did not admit into evidence an article by Professor Peter Nordstrom concerning the rapid loss of vaccine effectiveness on which the applicant sought to rely. Nor did the Commissioner admit the applicant's opinion evidence, supported by that document, that she posed no greater threat of transmission of the virus than a staff member who had been vaccinated 4-6 months before the deadline to meet the vaccination requirements. The applicant does not challenge the correctness of this ruling.
8. We refuse leave in respect of this ground.

1. The applicant contends that the Commission erred in finding that there was no basis for the employer to consider that the decision-maker should have been called (and therefore no foundation to draw an inference that her evidence would not have assisted the respondent). In support of this ground of appeal, the applicant makes the following three submissions:

(1) Firstly, the decision in Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 (Wood) is authority for the proposition that a Jones v Dunkel inference should be drawn where no explanation is provided for a respondent making the forensic decision not to call the decision-maker.

(2) Secondly, the Commissioner was not in an evidentiary position to make a finding that the Chief Executive had taken all relevant matters concerning the applicant into consideration when making the decision to terminate her because:

(a) the material in the termination brief given to the Chief Executive, including the termination letter itself, was largely proforma and only contained one or two sentences about the applicant's individual circumstances;

(b) there was no evidence that the Chief Executive had been informed of or approved the First and Second Show Cause Letters and she was not given any evidence about the respondent's reliance on the Determination until 6 December 2021; and

(c) none of the respondent's witnesses spoke to the Chief Executive about the termination brief and so were not able to give evidence as to the weight (if any) given by the Chief Executive to the material provided to him, or whether he had read the applicant's response.

(3) Thirdly (and noting that this submission referred to the applicant's husband), the criticism of the applicant for not expressly alerting the respondent to her intent to advance a case based on the factors which informed the Chief Executive's decision was unwarranted when the entire basis of the applicant's claim necessarily involved an attack on the reasons for her dismissal.

1. As to the first and third submissions referred to in the preceding paragraph, the Commissioner's decision included the following finding concerning the applicant's submission that a Jones v Dunkel inference was available arising from the failure of the respondent to call the Chief Executive of Murrumbidgee Local Health District:

"[120] Dealing firstly with the Jones v Dunkel inference, it is trite law that the rule only has application when certain conditions exist. These conditions are first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained (see RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [76]).

[121] The applicant had not put in her application, evidence nor in her outlines of submissions prior to the hearing that she was advancing a case based on procedural fairness nor, that she was contending that the respondent had failed to consider her response to the First Show Cause letter. Given this, there could have been no basis for the respondent to consider that the Chief Executive should have been called and thus there is no basis for drawing the inference."

1. The finding at [121] of the decision is not entirely supported by the documentary material before the Commission during the initial proceedings. The initial application, filed on 23 December 2021, includes the following statement in response to the request to set out "the reasons why you believe your dismissal was harsh, unreasonable or unjust":

"They (NSW Health) ignored letters outlining my concerns and issues raised and did not respond or acknowledge any of the responses provided. I was advised this would be assessed on an individual basis, however this was not accurate."

1. The applicant expanded upon this at paragraph 39 of her statement of 31 October 2022 (part of Exhibit 1) as follows:

"I do not believe that the Murrumbidgee Health letter of 2021 substantively responded to or engaged with the matters and queries that I had raised in my letter. Instead, it appears to be a generic response in respect of the suggested benefits of vaccination against Covid-19. At no time did anyone discuss with me my personal circumstances or explain to me the need to terminate my employment beyond these generic letters."

1. Further, paragraph 22 of the applicant's statement filed on 23 February 2023 (a few days in advance of the first hearing date) is as follows:

"The Respondent states in paragraph 3.1(m) that I did not respond to the 'show cause' letter. I raised my concerns about the provisionally approved Covid 19 mRNA vaccine to the Respondent on 29 October 2021. The Respondent did not address the concerns and queries that I raised in my letter. The Respondent appears to have ignored my concerns stating in what seems to be a 'generic' response that I had not provided evidence of compliance with the vaccination requirements."

1. Given that material, the applicant put in issue the basis of the respondent's decision to terminate her and whether the matters that she had raised in her letter of 29 October 2021 had had any bearing on that decision. Accordingly, we find error in Commissioner O'Sullivan's reasoning for failing to draw an inference that the Chief Executive's evidence would not have assisted the respondent's case, including the finding that there could have been no basis for the respondent to consider that the Chief Executive should have been called.
2. However, that is not determinative of this ground of appeal. At hearing, Ms McLeish explained that it had been determined that she give evidence because she was the staff member responsible for managing the COVID-19 issue and had prepared the brief for the Chief Executive. Her evidence was that she had produced the brief provided to the Chief Executive (including the applicant's letter of 29 October 2021) to inform the Chief Executive's decision to approve the applicant's termination, she had discussed with the Chief Executive her summary of its content and, for several hours, she had sat with the Chief Executive who "took time to actually go through everything". She explained the basis for her recommendation for the termination of the applicant's employment.
3. Commissioner O'Sullivan found that Ms McLeish's evidence demonstrated a flawed understanding of the operation of the Second PHO as the basis for her recommendation that the applicant be terminated. The Commissioner proceeded on the basis that that flawed understanding of the Second PHO's operation informed the Chief Executive's decision to terminate her employment. In those circumstances, there was little to be gained by calling the Chief Executive or inferring that her evidence would not have assisted the respondent.
4. Further, the decision of the respondent not to call the Chief Executive is in stark contrast to what occurred in Wood, on which the applicant relies. In that matter, Transport for NSW called no evidence to shed light on central matters in issue. Nor did the decision in Wood establish a principle of general application.
5. The second submission advanced by the applicant in support of this ground reagitates the contention that no proper consideration was given to the applicant's response to the First Show Cause Letter or individual circumstances, because the Chief Executive's decision had been predetermined by reason of the belief that she had contravened the Second PHO. It is difficult to see the relevance of that submission to the ground of appeal as pleaded. In large part, it reagitates matters raised (and which we have addressed) in the context of Grounds 1, 3 and 4.
6. Accordingly, we grant leave in respect of this ground of appeal. However, the absence of practical benefit to the applicant as a consequence of the error identified is such that we nonetheless find the Commissioner's decision that the applicant's dismissal was not procedurally unfair remains available to him. Accordingly, we dismiss this ground of appeal.

1. It is convenient to deal with Grounds 6 and 7 (described as Grounds 7 and 8) together. They impugn the Commissioner's ultimate determination of the matter and the consequent refusal to award the applicant any remedy. No specific error is asserted. In her submissions in support of each of these grounds, the applicant relies upon "the particulars set out in the Application" in relation to Grounds 7 and 8 respectively. There are none. Accordingly, any specific errors asserted in [7]-[15] of the applicant's written submissions, on which she also relies in respect of each of these grounds, are not pleaded. They also duplicate the matters pleaded by the applicant in Grounds 1-3. As to the formulation of the grounds themselves, as noted above, an appeal to the Full Bench of the Commission is not a rehearing of the matter. Error must be established. There being no specific error asserted by either ground, we refuse leave in respect of each of them.
2. For the reasons set out above, pursuant to s 188(2) of the IR Act, we refuse leave to appeal in respect of Grounds 1, 3, 4, 6 and 7.

1. Accordingly, the Commission makes the following orders:

(1) Leave to appeal is refused in respect of Grounds 1, 3, 4, 6 and 7.

(2) Leave to appeal is granted in respect of Grounds 2 and 5.

(3) The appeal is dismissed.

[1] Larter v Health Secretary in respect of Murrumbidgee Local Health District [2024] NSWIRComm 1029.

[2] Larter v Health Secretary in respect of NSW Ambulance [2024] NSWIRComm 1030.

[3] Listed in her Application for Leave to Appeal and Appeal as Grounds 1-8, but omitting Ground 6.

[4] Bankstown City Council v Paris [1999] NSWIRComm 368; (1999) 100 IR 363 at 370; [1999] NSWIRComm 368. Similarly, for unfair dismissal proceedings brought under the Fair Work Act 2009 (Cth) see Chalk v Ventia Australia Pty Ltd [2023] FWCFB 79 at [38], applying MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, 17 July 2000) at [42].

[5] Under the IR Act see: Bankstown City Council v Paris [1999] NSWIRComm 368; (1999) 100 IR 363 at 370; [1999] NSWIRComm 368; Rahman v Health Secretary [2021] NSWIRComm 1065 at [122] and Jaggi v Health Secretary [2022] NSWIRComm 1032 at [145]. See also Lane v Arrowcrest Group Pty Ltd (t/as Roh Alloy Wheels) (1990) 27 FCR 427 at 456 referred to in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 467.

[6] NC Seddon and RA Bigwood, Cheshire & Fifoot Law of Contract (11th ed, 2017, LexisNexis Butterworths) at [21.24].

[7] Starting with Dixon J himself in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 378; [1931] HCA 21; see also Downer EDI Ltd v Gillies (2012) 229 IR 314; [2012] NSWCA 333 at [131] (terminating party does not by giving a reason deprive itself of an alternative justification, "whether known of or not at the time" (Allsop P, Meagher JA to the same effect at [154]).

[8] Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 262; [1988] HCA (Mason CJ); compare ibid at 277 (Gaudron J). See also Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150 at 271; and Melbourne Stadiums Ltd v Sautner (2015) 247 IR 74; [2015] FCAFC 20 at [97] ("a mere purported termination upon inadequate grounds but nonetheless later justified on grounds not known or not relied upon at the time of purported termination" (emphasis added)).

[9] See, e.g., Concut Pty Ltd v Worrell (2000) 103 IR 160; [2000] HCA 64 at [29].

[10] NC Seddon and RA Bigwood, Cheshire & Fifoot Law of Contract (11th ed, 2017, LexisNexis Butterworths) at [21.24] and the authorities cited therein as follows: Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594 at 607; [1979] HCA 60; Legione v Hately [1983] HCA 11; (1982) 152 CLR 406 at 418, 452; [1983] HCA 11; Gair v Smith [1964] VicRp 107; [1964] VR 814 at 817; Doubikin Holdings Pty Ltd v Grail Pty Ltd (1989) 5 WAR 563 at 569-70; Burke and Riversdale Road Pty Ltd v Gemini Investments Pty Ltd [2003] VSC 33 at [16]-[26].

[11] See Hollingsworth v Commissioner of Police (No 2) [1999] NSWIRComm 240; (1999) 47 NSWLR 151 at 196-7; [1999] NSWIRComm 240; Bankstown City Council v Paris [1999] NSWIRComm 368; (1999) 100 IR 363 at 370; [1999] NSWIRComm 368; Starr v Commissioner of Police [2001] NSWIRComm 226 at [324]; Rowland v Austar Coal Mine Pty Ltd [2010] FWA 8011 at [92].

[12] Larter v Health Secretary in respect of NSW Ambulance [2024] NSWIRComm 1030 at [76].

[13] See Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 at [24]; Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1082 at [28]; Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 at [48].