Larter v Health Secretary in respect of NSW Ambulance

Industrial Relations Commission (NSW)|2023-03-15

decision

On 24 March 2022, the applicant filed an unfair dismissal application (the "Application"), seeking orders under section 89 of the Industrial Relations Act 1996 (NSW) (the "IR Act") arising from the dismissal from his employment for the reason that he failed to provide evidence of receiving two doses of COVID-19 vaccine or receiving an approved medical contraindication (the "Vaccination Requirements").

Procedural history

On 19 April 2022, the Application was the subject of an unsuccessful conciliation, conducted by Commissioner Muir.
The applicant elected to exercise his rights under s 173 of the IR Act and the matter was allocated to the Commission as currently constituted.
The Application was the subject of an initial day of hearing on 15 March 2023. The applicant was cross examined on his affidavits and the respondent relied on evidence from the following witnesses, each of whom were cross examined: 1. Liesa Huggins who was employed in the position of Superintendent with the respondent; and 2. Amanda Soliman who was employed by the respondent in the position of Executive Director People and Culture.
Following the first day of hearing, consent directions were made for the filing of further written submissions and to have the matter listed for final oral submissions.

The applicant

The applicant commenced employment with the respondent on 25 August 1996 and during the course of his employment worked in a number of different departments of the respondent, including the NSW Ambulance Media Department, Air Ambulance and the NSW Control Centre.
As at the date of his dismissal he was employed in the position of Station Officer at Tumut.
On or around 16 September 2021, the applicant commenced a period of sick leave which continued until 28 October 2021.
On 20 September 2021, the Paramedicine Council of NSW suspended the Applicant's registration under the Health Practitioner Regulation National Law (NSW), a decision which was subject to review by the Civil and Administrative Tribunal of New South Wales ("NCAT").
The applicant made a workers compensation claim on or around 12 November 2021 and continued on paid leave until liability was declined on 3 February 2022.

Vaccination requirements

The Vaccination Requirements for the applicant that existed prior to and up until the termination of the applicant's employment 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"); 3. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 (the "Third PHO"); and 4. The Determination.
The First, Second and Third 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.
A contravention of a direction under s 7 constitutes an offence and s 10 provides for maximum fines and possible imprisonment for such a contravention.
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.
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.
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.
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 which 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.
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.
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.
Following the termination of the applicant's employment, the Third PHO repealed and replaced by the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 dated 21 March 2022 (The Fourth PHO). This continued the Vaccination Requirements for public health workers and expired on 19 June 2022. It was not replaced.
Additionally, on 28 July 2022 the respondent issued a NSW Health Policy Directive, "Occupational Assessment, Screening and Vaccination Against Specific Infectious Diseases" (the "Policy"), also required employees of the respondent to be vaccinated for Covid-19.

The dismissal process

On 6 August 2021 the applicant sent an email to Dr Morgan, the Chief Executive of NSW Ambulance, enclosing a "COVID-19 Declination Form".
On 26 August 2021, the respondent distributed a document titled "The Latest" to all staff including the applicant which included the following explanation of the First PHO: "Mandatory COVID - 19 vaccination will now be required for all NSW Health staff with first vaccination required by 30 September 2021 and second vaccination by 30 November 2021 in order to continue to work the New South Wales Health."
On 8 September 2021, the applicant emailed Dr Morgan stating he did not want to participate in the "mandatory" vaccination programme for COVID-19.
On 30 September 2021, the respondent wrote to the applicant regarding the requirement under the First PHO, which included the following statement: "As you would be aware, the Public Health (Covid - 19 Vaccination of Healthcare Workers) Order 2021 (PH Order) requires you have at least one dose of a Covid - 19 vaccine or have been issued with a medical contraindication certificate to perform work for NSW Health."
This correspondence also put the applicant on notice that unless he had provided evidence that he had met the requirements he would be placed on unpaid leave from 30 September 2021.
A brief was provided to the Chief Executive of the respondent that contained a recommendation to move through to the provision of a show cause letter to the applicant prepared by Ms Soliman. Within this brief, the following analysis was provided: "Public Health (Covid - 19 Vaccination of Healthcare Workers) Order 2021 (PH Order) requires all staff to have had at least one dose of a Covid - 19 vaccine or have been issued with a medical contraindication certificate to perform work the New South Wales health from 30 September 2021. NSW Ambulance has made reasonable attempts to ensure all employees are aware of their requirements comply, through all staff communications in "The Latest", information including FAQ on the COVID Portal an individual written and verbal correspondence. John Larter has been identified as not meeting this requirement and therefore is unable to perform his role or any alternate duties for NSW Health. … Approval is now sought to commence a show cause process for John Larter in line with the approved process provided by NSW Health."
On 3 February 2022, the respondent provided the applicant a show cause letter (the "First Show Cause Letter"), which amongst other things stated: "Despite having being given a reasonable period of notice, you do not need vaccination/medical contraindication requirements, and accordingly [sic - are] unable to perform your role/work in the NSW Health Service. Accordingly, NSW health That is considering the viability of your future employment, including whether to terminate your employment. You are invited to provide any submissions that you wish to make as to why your employment should not be terminated."
In correspondence dated 15 February 2022, the applicant provided a response to the First Show Cause Letter. In his response, the applicant made reference to proceedings that he had before the Supreme Court of New South Wales and also made reference to his proceedings before NCAT.
On 22 February 2022, the respondent provided the applicant further opportunity to show cause why his employment should not be terminated (the "Second Show Cause Letter"). This correspondence made reference to the Determination in the context of questions asked by him in his reply of 15 February 2022 regarding the Vaccination Requirements. However, it goes on to then state that the respondent is considering the termination of his employment arising from his inability to work due to the Vaccination Requirements under the PH Order.
The applicant did not respond to the Second Show Cause Letter and in late February 2022 a brief was prepared by Ms Soliman for the Chief Executive which recommended termination of the applicant's employment. Under the heading of Key Reasons, it states the following in relation to the Third PHO: "Public Health Order requires health care workers to be vaccinated The Public Health Order/Public Health Order 3 directs that a "health care worker" must not work as a health care worker unless they have received their first dose of an approved COVID-19 vaccine by 30 September 2021 with a second dose required by 30 November 2021 (unless they have a certified medical contraindication)."
In correspondence dated 2 March 2022, the applicant was informed that his employment had been terminated with immediate effect and referred to his failure to provide evidence of Covid-19 vaccination or a medical contraindication in order to comply with the First, Second, Third PHO and the Determination.

Approach

The guiding consideration in relation to an application made pursuant to s 84 of the IR Act is for the Commission to determine whether the dismissal was harsh, unreasonable or unjust: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325.
It is the applicant who bears the onus to prove whether the dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
The leading authority as to what constitutes harsh, unreasonable or unjust is contained in the following passage from the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465: "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 IR Act provides that the Commission may take the following matters into account when determining whether a dismissal was unfair: 1. whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, 2. if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, 3. whether a warning of unsatisfactory performance was given before the dismissal, 4. the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, 5. whether or not the applicant requested reinstatement or re-employment with the employer, and 6. such other matters as the Commission considers relevant.
The matters listed in s 88 are a guide as to what the Commission may take into account: Paul Robert Taggart and Bell Sports Australia [1999] NSWIRComm 408.

The Recission

It is appropriate at this point to deal with the applicant's submission to admit further evidence as to the decision to remove the requirement of workers to be vaccinated and the purpose of the admission.
The applicant contended that the evidence of the Recission should be accepted and that it was relevant both as to the determination of unfairness and remedy.
In support of the contention that the Recission was relevant to the determination of unfairness, the applicant submitted that the respondent unreasonably failed to consider alternatives to dismissal, such as taking leave during the period between the First PHO and the Recission. The applicant calculated that his accrued leave was sufficient to allow him to be absent from the workforce suggesting that the Determination was unreasonable. It pointed out that these submissions were directly relevant to the contention already made in its closing submissions that there were alternatives to dismissal and thus the Determination was unreasonable.
The respondent firstly submitted that evidence of the Rescission should not be accepted as evidence by the Commission for reasons including that the material was not relevant to the determination of unfairness and that extenuating circumstances did not exist so as to warrant the granting of leave to admit this evidence.
Curiously, the respondent submitted that the Recession may be relevant to the issue of remedy.
As to the question of relevance of the Recission vis a vis the issue of unfairness, the respondent relied upon Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 to argue that the determination of whether unfair dismissal occurred is decided with reference to the circumstances as they existed at the time of the dismissal. They also referred to Bankstown City Council v Paris (1999) 100 IR 363; Starr v Commissioner of Police [2001] NSWIRComm 226; Alexander v Commissioner of Police [2009] NSWIRComm 3; and Rowland v Austar Coal Mine Pty Ltd [2010] FWA 8011.
In its further submissions in reply the applicant attempted to distinguish these authorities by contending that the facts under present consideration are distinctive in that a change to an existing policy occurred, rather than the emergence of a new fact. The respondent, on the applicant's reasoning, should have known that the Determination would eventually be amended or rescinded, making the Recission relevant to the facts at the time for the purposes of determining this unfair dismissal application.
Firstly, I accept the admission of the evidence of the Recission and in doing so note that it was the respondent who brought the possibility of the Recession to the attention of the Commission. Further the Commission considers that the Recission could be relevant to any consideration of remedy, but for the following reasons find that it is not relevant in relation to the determination of unfairness.
Even if the applicant's claim that the respondent should have known that the Determination would change is correct, there is no way the respondent could have known when any such recission could have taken place. No aspect of the Recission was a fact the respondent could have known at the time of the dismissal beyond a general apprehension that the Determination was impermanent and may be amended at some time in the future. To attempt to include the Recission in the facts that may be relied upon as forming part of the circumstances surrounding the dismissal is to place more weight on this general apprehension than it will bear, and the Commission consequently accepts the relevance of the respondent's line of authorities. Accordingly, the evidence of the Recission is not relevant to the unfairness of the dismissal.

Overview of applicant case

The applicant's case in relation to unfairness can be distilled to the following grounds: 1. The applicant was dismissed on the incorrect basis that he had contravened the Second PHO; 2. The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction; 3. The dismissal was procedurally unfair; and 4. The dismissal was harsh.
The applicant also submitted that the Policy was unlawful and unreasonable and thus is not an obstacle for the Commission to exercise its' discretion to order the remedy of reinstatement or re-employment should there be a finding of unfairness.
It is convenient to deal with each ground advanced by the applicant in relation to unfairness separately.

Jones v Dunkel

In support of all of the grounds advanced by the applicant, it was contended that the Commission should draw a Jones v Dunkel inference due to the unexplained failure of the respondent to call the Chief Executive of the respondent who was the decision maker.
The respondent submitted that there was no basis, either in the evidence or the outline of submissions provided by the applicant prior to the hearing of the matter, that they should call evidence from the Chief Executive.
It is trite law that a Jones v Dunkel inference 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].
The applicant had not put in his application, evidence or outlines of submissions prior to the hearing any suggestion that he was advancing a case based on the various matters that the Chief Executive was considering or not considering in the decision making process that led to the termination of the applicant's employment. Given this, there could have been no basis for the respondent to consider that the Chief Executive should have been called and the conditions necessary for drawing the inference are not present.

No requirement under the PHOs to be vaccinated

The applicant contended under this ground that he was compliant with the PHOs, but the respondent believed he wasn't. The applicant put that this was the reason why he had to show cause as to why his employment should not be terminated and why he was ultimately dismissed.
In support of the contention that the applicant was compliant, the applicant firstly relied on the reasoning of Beech-Jones CJ in Kassam v Hazzard [2021] NSWSC 1320. In particular the applicant relied upon that part of the decision in which his Honour determined that the Public Health Orders requiring persons to be vaccinated if leaving an area of concern or entering a construction site did not "authorise the involuntary vaccination of anyone", nor did they impair a person's autonomy over their own body.
The effect of the applicant's contention on this ground was that the obligation under the First, Second and Third PHO was placed on the respondent to not permit the applicant to work, which they did by directing him not to work. He then submitted that by remaining unvaccinated, he was not in breach of or "non-compliant" with the Second PHO and that he was always compliant with the First, Second and Third PHO because he did not work as a health care worker whilst unvaccinated.
On this ground, the applicant further contended that the respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain is flawed. The applicant in support of this contention made the following submission: "17. The fundamental nature of the master and servant relationship is that a servant earns wages "for the service reasonably demanded" by the master: Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 (Automatic Fire Sprinklers) at 466. In Automatic Fire Sprinklers, it was also observed at 466 that "They also serve who only stand and wait" and therefore "A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract". The Respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain. It places the burden entirely on the worker without recognising that a worker only does work if he is directed or required to do so by his employer. Properly read, the words in clause 6 and clause 5 mean that at no stage could the employer require the unvaccinated employee to perform work. The words "A health care worker must not do work as a health care worker unless the worker has received at least 2 doses of a COVID-19 vaccine" contain a prohibition upon the employer and curtails the right of the employer to direct the worker to "do work" unless the worker is vaccinated. Clause 6 confirms that this is so."
As to being terminated on the ground of non-compliance with the Second PHO, the applicant pointed to the evidence of Ms Huggins and Ms Soliman that they believed that the applicant was not compliant with the Third PHO.
The respondent asserted that the applicant was not terminated for misconduct or wrongdoing: rather, pursuant to cl 5 of the Third PHO, he was not permitted to perform any work.
It was contended by the respondent that the reason for dismissing the applicant was that as at the date of termination, the applicant had not been able to work for just over five months and there was no expectation that he would be able to do so in the foreseeable future.
In relation to the applicant's submission as to the evidence of the respondent's witnesses in relation to non-compliance with the Second PHO, the following submission was made: "41. The Applicant may be technically correct that the Applicant was not 'non-compliant' in respect of the Public Health Orders if that expression is understood to mean that the Public Health Orders required him to be vaccinated. What the Public Health Orders mandated was that he had to be vaccinated before he could work as a paramedic (absent a medical contraindication). The Applicant's decision not to be vaccinated meant he did not meet a minimum requirement to work, which in layperson terms meant he was 'non-compliant' with a necessary requirement to work."
The respondent submitted that the reason was valid in that it was sound, defensible and well-founded and was consistent with the finding of Commissioner Sloan in Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 and Commissioner Webster in Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1082.
In reply, the applicant put that the respondent's position was inconsistent with the respondent's own witnesses, both of whom gave evidence under cross examination that the applicant was terminated for failing to comply with the Second PHO and also the Determination.
Furthermore, the applicant submitted that, due to the 90-day time limitation of each PHO by application of s 7(5) of the Public Health Act 2010 and confirmed in Larter v Hazzard [2022] NSWCA 238 at [25], there could not be any expectation by the respondent that the requirements under the Second PHO would be extended and would at some stage come to an end.
Central to the determination of this ground, is what role did the Third PHO have in relation to the dismissal?
The consistent message that had been sent to the applicant by the respondent was that his failure to meet the Vaccination Requirements under the PHOs meant that he could not work. The First and Second Show Cause Letters were also pellucidly clear that it was due to his inability to work arising from the operation of the PHO's that they were considering the termination of his employment.
As to the evidence of Ms Soliman and Ms Huggins, both may have given evidence that they thought the applicant was not compliant with the PHO's, however, neither stated that this was the reason for dismissal.
Furthermore, the brief prepared by Ms Soliman to the Chief Executive recommending termination under the heading of "Key Reasons" stated the following in relation to the Third PHO: "Public Health Order requires health care workers to be vaccinated The Public Health Order/Public Health Order 3 directs that a "health care worker" must not work as a health care worker unless they have received their first dose of an approved COVID-19 vaccine by 30 September 2021 with a second dose required by 30 November 2021 (unless they have a certified medical contraindication)."
I find that the evidence before the Commission leads to the obvious conclusion that in relation to the Third PHO, the applicant was terminated as a result of being unable to perform work and not because he was in "contravention" of the Third PHO.
There was no reason for the respondent to consider that the PHOs would abate at any point in the near future such that the applicant could return to work. In those circumstances, I find that the applicant has not made out this ground and the dismissal on this basis was one which was not unjust.

The Direction was unlawful

By the time of the closing submissions, the applicant advanced three bases upon which he contended the Determination was unlawful and unreasonable, all of which were when considered alleging unlawfulness and not unreasonableness.
Before turning to these grounds, it is first necessary to deal with the respondent's submission that the validity of the Determination is not a matter for the Commission to determine.
The respondent made the following submissions in support of the proposition that the Commission cannot consider the validity of the Determination: "The validity of the Determination (as to whether it is a valid exercise of the power conferred in s 116A of the HS Act), as noted by Murphy C in Griffin and others [2022] NSWIRComm 1027 at [37], is not a matter for the Commission to determine in its unfair dismissal jurisdiction. As Beech-Jones CJ said in Kassam in relation to the comments of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 with respect to the validity of a public health order made under the Public Health Act: '…The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function'."
As to Murphy C's observations in Griffin, the applicant relied on the following passage in the decision of Sloan C in Cromie: "[21] With respect, the Commissioner's statement that "it is not open to the Commission...to go behind the Health Determination" must be approached with caution. If a case is presented that a dismissal was unfair on the basis that it was the consequence of a determination made pursuant to s 116A of the Health Services Act which is alleged not to be lawful and reasonable, for example, the Commission can and should consider that case. Section 116A confers no particular protection against scrutiny of the Secretary's decisions."
The first basis advanced by the applicant as to why the Direction was unlawful, was that when read in context, s 116A in its entirety requires the consent of the relevant unions as set out in ss 116A(3) and no such consent was provided.
The second basis relied on by the applicant in relation to the Direction being unlawful is that it unilaterally varied the conditions of employment of the applicant.
The applicant's third basis as to the unlawfulness of the Determination was that the Vaccination Requirement did not constitute a "condition of employment" for the purposes of s 116A.
It was submitted that a "condition of employment" contemplates that employment will be ongoing and subject to that condition, rather than being that the employment will not commence unless the employee carries out an action antecedent to the employment. Along these lines, the applicant contended that the Determination could cover incoming employees but could not be used to terminate existing employees.
The fourth basis advanced by the applicant was that the Determination was invalid because it replicates the PHO requirements in circumstances where s116A provides that the Health Secretary may fix conditions only 'insofar as they are not fixed by or under any other law'.
In reply, the respondent firstly noted that four members of the Commission have considered the Determination to be valid: 1. Murphy C in Griffin at [49]; 2. Muir C in Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 who found the Determination to be a lawful and reasonable direction at [48]; 3. Sloan C in Cromie at [24]; and 4. Webster C in Adriano at [26].
The respondent submitted that the power under s116A(1) to fix conditions of employment stands alone and is not one which relies on 116(2)-(3).
In support of this submission, the respondent relied upon the findings of Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 as to the purpose and history of s116A of the Health Act and in particular, the following paragraphs: "[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."
The respondent also submitted that the approach detailed above by Walton J is consistent with the legislative history of s 116A and its similarity with the like provision in s 4E(1) of the Public Sector Employment and Management Act 2002 (NSW).
As to the Determination and the conditions of employment, the respondent argued that conditions of employment can include mandatory pre-requisites to employment and ongoing mandatory qualifications necessary for the employment. They referred to examples of a childcare worker who must obtain and hold a valid working with children check and a truck driver who must hold a relevant heavy vehicle license.
The respondent then proceeded to make the following submission concerning the Determination fixing a condition of employment: "As noted in Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163 at [10], the HS Act and the IR Act were enacted in circumstances that they may be considered to be 'cognate'. To that end, the words 'may fix the salary, wages and conditions of employment' in s.116A(1) 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. There is no reason to think that questions of vaccination, which can be (and have been for many years) addressed by policy are not conditions of employment within the broad meaning of the IR Act. Further, just as it is an 'industrial matter', matters that relate to workers' health and safety can be 'conditions of employment' as they regulate the nature of part of the relationship between employee and an employer - see Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [186]."
As to the conditions of employment in the Determination already set in the Second PHO, the respondent submitted that the Second PHO were not made for the purpose of (and did not have the effect of) fixing conditions of employment for employees of the respondent.
The respondent further submitted that the Second PHO were temporary orders made by the Minister for Health and Medical Research pursuant to s 7 of the Public Health Act 2010 (NSW) for the purposes of dealing with a risk to public health and accordingly are not conditions of employment.
Dealing firstly with the respondent's contention that the Commission does not have the jurisdiction to consider the validity of the Determination, the decision of Kassam relied upon by the applicant deals with the Fair Work Commission's jurisdiction in relation to the PHOs and not the Determination.
Although both the PHOs and the Determination are instruments made pursuant to statute, there is a stark difference between them, particularly when regard is had to the criminal consequences for contravention of a PHO. In this regard, Kassam does not support the position advanced by the applicant.
I agree with the findings of Commissioner Sloan in Cromie that the Commission is able to consider the validity of the Determination when raised by an applicant in an unfair dismissal application.
As the applicant has brought into question the validity of the Determination, I am required to consider the applicant's contentions in this regard.
As to the first basis of unlawfulness raised by the applicant, the interpretation advanced is contrary to a plain and ordinary reading of the provision.
Sub-sections 116A(1) and (3), stipulate a different basis upon which the respondent can make a determination, either by unilateral change of conditions of employment as in 116A(1) determined by Walton J in Paramedics or in 116A(3) by agreement with an association or group of employees.
The second basis advanced by the applicant, if accepted, would result in a perverse outcome that for new employees requiring vaccination, whether it be for COVID-19 or otherwise, would constitute a condition of employment for the purposes of a determination under s 116A(1), but not for existing employees.
I accept the respondent's submissions that it does constitute a condition of employment, just as any other change to the requirement to perform work set by legislative instrument or professional bodies do.
The second basis is also at odds with the finding in Paramedics above at [114], that the power under s 116A(1) permits a unilateral variation to the salary, wages and conditions of employment at any time.
As to the third basis advanced by the applicant regarding the Determination, it is reliant on the proposition that the obligations under the Second PHO, properly considered, constitute a condition of employment.
The obligation under the Second PHO, as determined above and consistent with the applicant's submission was to place a prohibition on employers, including the respondent, from permitting health workers to perform work unless they met the Vaccination Requirements. It was in place for no longer than 90 days and as submitted by the respondent was brought about for the purpose of dealing with a risk to public health and accordingly are not conditions of employment.
Given the conclusions I have reached in relation to each of the bases advanced by the applicant in relation to the lawfulness of the Direction, I find that the Direction was lawful and accordingly the applicant has not made out this ground.

Procedurally Unfair

The applicant submitted that he was not afforded procedural fairness because he did not have notice of the fact that the Chief Executive would consider the Determination as part of the formal dismissal process defined by the show cause notice.
In addressing the reference to the Determination in the Second Cause Letter, the effect of the applicant's submission was that it was not sufficient to put the applicant on notice that his failure to comply with it was to be considered in terms of his potential termination of employment.
It was further submitted by the applicant that he was unaware of the actual factors which the Chief Executive would consider in terminating his employment. The Applicant went on to submit that absent the provision of the above information, he was unable to make a case in reply.
It was also submitted that it was procedurally unfair in that the respondent failed to take into account the matters raised by the applicant when the respondent was considering whether to dismiss the applicant.
The respondent pointed to the Second Show Cause Letter which included reference to the Determination and submitted that there were no other factors, absent those that the applicant was informed of which were taken into account for the termination of the applicant's employment.
As to the matters considered by the Chief Executive, the respondent relied on the brief that was sent to the Chief Executive, which was signed off by him. In this brief, the matters raised by the applicant in his reply to the First Show Cause Letter were listed and there was no evidence to suggest that the Chief Executive did not consider all of them.
Dealing firstly with the failure of the respondent to put the applicant on notice regarding that the Determination, the first time that this was raised in the context of procedural fairness was in the cross examination of Ms Soliman.
The applicant in his affidavit in chief makes explicit reference to the Determination in his affidavit in chief, stating that "the Requirements of this Determination were very similar to PHO2 which was in force at the time". The applicant also does not refer to the Determination in his written evidence in reply nor in his oral evidence before the Commission.
In the absence of any evidence from the applicant that he was not aware that his failure to comply with the Vaccination Requirements of the Determination was being considered as ground for his dismissal, the Commission finds that such a finding has no reasonable basis. This is particularly so when the applicant was aware of this at some point following receipt of the respondent's evidence which contained the brief to the Chief Executive.
As to the failure to take into account the matters raised by the applicant, it is important to note that he failed to respond to the Second Show Cause Letter and therefore on one level there was nothing to consider. Notwithstanding this, the contents of the brief to the Chief Executive provides a sufficient basis for me to find that the respondent did in any event consider the applicant's response to the First Show Cause letter as well as the applicant's individual circumstances.
Given the above, I find that the applicant has not made out the ground that the dismissal was procedurally unfair.

Harsh

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 his employment.
For its part, the respondent submitted that the Commission as currently constituted found in Welch v Commissioner of Police [2023] NSWIRComm 1002 at [74]-[75], that in balancing all matters that the dismissal of the applicant is justified.
Almost all dismissals will occasion hardship upon an individual who has been removed from their employment, but that does not make all dismissals harsh to the level that it renders that dismissal unfair. As I found in Welch, it is a matter of weighing up all the circumstances, including the reason(s) for the dismissal as well as the impact upon on the applicant.
In this matter, the applicant found himself in the same situation as all other employees who were faced with the prospect of meeting COVID-19 vaccination requirements to maintain his employment. For his own personal reasons, which have no bearing on my consideration of his application, he chose not to. Given this, the harshness visited upon himself is partly a consequence of his own choice and thus does not render the dismissal harsh for the purposes of the IR Act.

Disposition

Overall, for the reasons set above, I find that the dismissal not unfair for the purposes of the IR Act.
As the applicant has not made out that the dismissal was unfair, there is no need to consider the submissions concerning the Policy and, I make the following order: 1. the application is dismissed.

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: 02 July 2024

Public Sector Employment and Management Act 2002(NSW)

[1999] NSWIRComm 408

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (24)