Larter v Health Secretary in respect of NSW Ambulance [2025] NSWIRComm 7

Leave to appeal, nature of appeal and statutory framework

1. We have set out the applicable principles governing the determination of leave to appeal, the nature of appeals and the determination of applications under s 84 of the IR Act in the related appeal Larter v Health Secretary in respect of Murrumbidgee Local Health District [2025] NSWIRComm 6 at [5]-[13]. We adopt those principles for the purposes of this application without repeating them.

1. During the appeal proceedings, the applicant suggested that the evidence in his proceedings was evidence in Ms 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 Mr Larter's case was evidence in Ms 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 [18]-[28] of Commissioner O'Sullivan's decision which is the subject of this appeal, and is reproduced below:

"Vaccination Requirements

[18] 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

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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."

1. On 26 August 2021, the respondent distributed a document to all staff, informing them of the vaccination requirements in the First Public Health Order (First PHO). That document stated staff were required to receive a first COVID-19 vaccination by 30 September 2021 and a second vaccination by 30 November 2021, in order to continue to work for NSW Health.
2. On 8 September 2021, the applicant emailed the Chief Executive of NSW Ambulance, stating that he did not want to participate in the "mandatory" vaccination program for COVID-19.
3. On 30 September 2021, the respondent wrote to the applicant concerning the requirement of the First PHO, including that he was required to have had at least one dose of the COVID-19 vaccine or been issued with a medical contraindication certificate to be able to continue to work for NSW Health. The respondent advised the applicant that unless he had provided evidence that he met those requirements, he would be placed on unpaid leave from that date.
4. A brief was provided to the Chief Executive of the respondent which contained a recommendation to issue the applicant with a show cause letter. A letter was sent to the applicant by the respondent, in accordance with that recommendation, on 3 February 2022 (First Show Cause Letter). That letter included the following content:

"Despite having been given a reasonable period of notice, you do not meet vaccination/medical contraindication requirements, and accordingly 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 his employment should not be terminated. He responded to that letter on 15 February 2022. His response made reference to proceedings in which he was engaged before the Supreme Court of NSW and NCAT. The applicant also noted that he was on leave at that time and therefore posed no risk to NSW Ambulance staff or persons at NSW Ambulance or NSW Health worksites.
2. The applicant received a further letter from the respondent (Second Show Cause Letter) on 22 February 2022. That letter made reference to the Determination in the context of questions said to have been asked by the applicant in his letter of 15 February 2022. It then included the following content:

"At the outset, it is important to note that NSW Health staff are required to meet the requirements of the PH Order in order to continue to work for NSW Health. There are no exceptions...

As you would be aware, under the PH Order a 'health care worker' cannot do work (including remotely) as a 'health care worker' unless they are vaccinated against COVID-19, with very limited exemptions. Employees who do not obtain a COVID-19 vaccination cannot lawfully attend work under the PH Order."

1. The applicant did not respond to the Second Show Cause Letter. In late February 2022, a brief was prepared for the Chief Executive of NSW Ambulance which recommended the termination of the applicant's employment. Under the heading "Key Reasons", it states the following in relation to the Third Public Health Order (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)."

1. By correspondence dated 2 March 2022, the applicant was informed that his employment had been terminated with immediate effect, making reference to his failure to provide evidence of COVID-19 vaccination or a medical contraindication in order to comply with the First, Second and Third PHOs and the Health Secretary's Determination No 33 of 2021 (the Determination).
2. As at October 2022, the applicant was working part-time as a casual junior at Tumut McDonald's, where his primary tasks were maintenance and cleaning. His wife, who had also lost her employment with NSW Health, was also working at Tumut McDonald's. The applicant gave evidence of the very significant financial and emotional impact upon their family of his loss of employment, together with that of his wife.

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 also found at [73]-[77] that the applicant had been dismissed as a result of being unable to perform work and not because he was in contravention of the Third PHO (in the sense that he failed to become vaccinated). The Commissioner further found that there was no reason for the respondent to consider that the Third PHO would abate in the near future, enabling the applicant to return to work. Consequently, Commissioner O'Sullivan found that the applicant's dismissal was not unjust.
3. The Commissioner rejected the applicant's claim that the Determination was unlawful or invalid at [106].
4. Commissioner O'Sullivan also considered the applicant's claims of procedural unfairness, finding at [115] that there was no reasonable basis for the Commission to find that the applicant was unaware that his failure to meet the vaccination requirements of Determination played a role in his dismissal. At [116], Commissioner O'Sullivan found that the respondent considered both the applicant's response to the First Show Cause Letter and his individual circumstances when making the decision to terminate the applicant's employment. As a result, Commissioner O'Sullivan rejected the applicant's claims of procedural unfairness at [117].
5. Finally, Commissioner O'Sullivan 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, Commissioner O'Sullivan determined at [121] 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 his employment unless he could meet the vaccination requirements and that the harshness visited upon him was partly the consequences of his own choice to remain unvaccinated, the reasons for which did not bear upon the Commission's consideration of his 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 eight appeal grounds as follows:

"1. The Commissioner erred (at [77]) by finding that the applicant had not established that the dismissal was unjust.

2. The Commissioner erred (at [106]) by finding that Direction 33 was lawful.

3. The Commissioner erred (at [117]) by finding that the applicant had not made out that the decision was procedurally unfair.

4. The Commissioner erred (at [118]-[121]) in finding that the applicant had not established that the dismissal was harsh.

5. The Commissioner erred (at [60]) 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 failing to receive and consider the evidence tendered by the applicant, namely Exhibit 3 being a public statement by Premier Perottet accepted (sic) that the state of knowledge of the New South Wales Government was that COVID 19 had no effect on transmission in the correct environment when that evidence was relevant and probative as set out above.

7. The Commissioner erred (at [122]) by finding that decision was not unfair for the purposes of the IR Act.

8. The Commissioner erred by failing to award any remedy to the applicant and by dismissing the application (at [123])."

1. Each of Grounds 1-4 were 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 propose to 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 the related appeal in Larter v Health Secretary in respect of Murrumbidgee Local Health District [2025] NSWIRComm 6 at [32]-[34], we remarked that the parties' 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 a just, quick and cheap resolution of the real issues in the proceedings and is to be deprecated. Those remarks apply with equal force to these proceedings.
5. In addition, the applicant's written submissions on appeal 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, we reiterate that it should not be assumed that the Commission would invariably take that course:

cf. Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 at [7].

1. This ground challenges the Commissioner's determination at [77] that the applicant had not met his onus of establishing that his dismissal was unjust. 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 unjust if the applicant established that the reason was limited to a finding that he contravened the PHO (at [76]).

(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 at [74] and [76] and the finding was against the evidence;

(3) To the extent that he had regard to the respondent's submission recorded at [67] that "the applicant had not been able to work for just over 5 months and there was no expectation that he would be able to do so in the future":

(a) The Commissioner failed to have regard to the fact that over 3 of the 5 months absence was authorised on worker's compensation leave (see finding at [17]);

(b) 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;

(c) 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;

(d) 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 he was complying with his obligations in his employment.

(5) The Commissioner erred (at [73]) by construing the employment obligations of the application as including an obligation to perform work when the true extent of obligation is to perform work as directed and subject to all rights to exercise entitlements to leave.

(6) The Commissioner erred (at [77]) 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 his written submissions, the applicant stated that he relied upon the particulars provided in relation to this ground of appeal. He advanced the following five reasons in support of this ground:

(1) Firstly, the Third PHO did not require the applicant to be vaccinated, but instead required his employer to direct him not to attend work while he was not vaccinated. The Commissioner accepted this construction in respect of the PHOs generally at [105]. However, this was inconsistent with the finding at [76] and [77] that the applicant was dismissed because he was "unable to perform work".

(2) Secondly, Commissioner O'Sullivan erred by failing to appreciate that the Third 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, the finding made by Commissioner O'Sullivan at [67] and [77] that there was no expectation on the part of the respondent that the applicant could return to work was against the evidence and against the Jones v Dunkel inference that ought to have applied in light of the respondent's failure to call evidence from any witness who could provide evidence on that matter.

(4) Fourthly, the Commissioner failed to consider that the applicant had been absent from work for over three months because he was on workers' compensation leave and the state of affairs brought about by the PH Act and the Public Health Orders (PHOs) was necessarily limited to short periods of time under the legislation in the context of a temporary and urgent health emergency measure.

(5) Fifthly, the Commissioner erred by rejecting evidence that the State of New South Wales had, on 17 February 2022, firmly foreshadowed that restrictions on unvaccinated employees would be lifted, which was probative on the question of whether the applicant could foreseeably return to work.

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 Third PHO. Accordingly, it is to that subject that we now turn.
2. The applicant characterised the Third PHO, being the PHO in operation at the time of Mr Larter's dismissal, as requiring the employer to direct an unvaccinated employee not to perform any work. He asserted that, practically speaking, an employee cannot work pursuant to his or her employment contract while they are directed not to do so.
3. Based on the characterisation referred to above, the applicant submitted that the health care worker's obligations pursuant to cl 5 of the Third 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 Third 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.
4. This proposition underpinned the applicant's submission that, because the Third 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 his employer's direction to not attend work.
5. We reject that submission. The plain terms of the Third 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 Third 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 his obligation under the Third PHO was to direct unvaccinated employees not to attend work.
6. The applicant's submission that he had merely complied with his employer's direction not to attend work conceals his antecedent and critical contribution to the basis for his dismissal - namely, his choice to be unvaccinated and thereby to render himself unable to fulfil the condition imposed by the Determination on his continued employment as a health care worker. So far as concerns the operation of the Third PHO, the applicant's choice to remain unvaccinated also exposed him to the prohibition against him performing any work as a health care worker that, properly understood, was imposed directly on him by the Third PHO.
7. Contrary to the first reason advanced by the applicant at [33(1)] above, there is no inconsistency between the Commissioner's finding that the applicant was terminated as a result of being unable to perform work and the Commissioner's acceptance at [105] that the Second PHO placed a prohibition on employers from permitting health care workers to perform work unless they met the vaccination requirements. It seems likely that the Commissioner intended to refer to the Third PHO at [105], which was the operative PHO at the time of the termination of the applicant's employment. However, we accept for the purposes of addressing the applicant's submission on this ground that the Commissioner's construction of the Second PHO in this regard would apply equally to the Third PHO which was relevantly in similar terms. As such, and as we have earlier explained, the obligation imposed by the Third PHO on the employer was ancillary to the primary obligation that it imposed on health care workers.
8. To the extent that the applicant's submission challenges the Commissioner's finding as unavailable on the evidence, we reject it. As found by Commissioner O'Sullivan at [73], the First and Second Show Cause letters, extracts of which are set out above, make "pellucidly clear" that the respondent was considering terminating the applicant's employment because of the applicant's inability to work.
9. At the hearing, Ms Amanda Soliman, Executive Director, People and Culture at NSW Ambulance, explained her understanding that the PHOs did not prevent the applicant from remaining an employee of NSW Ambulance. Rather, they prevented the applicant from working, and the applicant was therefore compliant with the PHO direction not to attend work. Her evidence that the Third PHO required the applicant to be vaccinated and that his failure to do so constituted non-compliance with it must be viewed in that light. Properly understood, this evidence was an expression in ordinary parlance of the proposition that the applicant had failed to meet the vaccination requirements set out in the PHO in order to enable him to perform work. This is consistent with Ms Soliman's brief to the Chief Executive of Ambulance NSW. Having set out the history of the termination process, Ms Soliman commenced her "Recommendation to Terminate Employment" as follows:

"John Larter is unable to work in the NSW Health Service without breaching the Public Health Order/Public Health Order 3 ... John Larter is also unable or unwilling to meet the Health Secretary's vaccination requirements (unless medical contraindication exists) as detailed in the Determination."

1. We agree with Commissioner O'Sullivan that the conclusion that the applicant was terminated because he was unable to perform work was "obvious": see [76] of the Commissioner's decision.
2. Further, it follows from our rejection of applicant's contention about the operation of the Third PHO that his second reason, set out at [33(2)] above, must also fail. We have otherwise addressed the lawfulness of the Determination in the context of Ground 2.
3. The third reason advanced by the applicant, set out at [33(3)] above, misrepresents both the respondent's representation recorded by the Commissioner at [67] and the Commissioner's finding at [77]. The respondent's contention, as recorded by Commissioner O'Sullivan at [67], was that "there was no expectation that [the applicant] would be able to [work] in the foreseeable future." Commissioner O'Sullivan accepted that submission at [77] in finding that 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".
4. Consideration of the likelihood that the applicant would be permitted to return to work in the near future occurred in the context of the evidence of the operation of the First, Second and Third PHOs. While the Third PHO was in operation for a period of only 90 days, the vaccination requirements contained in it were similar to those in both the First and Second PHOs. Further, the content of the First and Second Show Cause Letters, including the extracts set out above, demonstrated the respondent's expectation that employees who did not meet the vaccination requirements of the PHOs would be unable to work for NSW Health in the near future. Accordingly, the finding made by the Commission was well open on the evidence before it. We have addressed the applicant's submission concerning the availability of an inference based on Jones v Dunkel in the context of Ground 5.
5. The applicant's fourth reason, set out at [33] above, must fail for similar reasons. Commissioner O'Sullivan was plainly aware both that the applicant had been on an extended period of workers' compensation leave and that the PHOs each operated for only 90 days. Both facts were expressly referenced in the Commissioner's decision, as was the respondent's submission concerning the inference that it was submitted the Commission should draw from the 90-day time limitation on the PHO. That the Commissioner did not make the inference sought by the applicant in the context of the implementation of a third PHO in similar terms to the first two is unremarkable. We find that the Commissioner considered each of these matters in making the finding at [77].3
6. The final reason upon which the applicant relies, set out at [33(5)] above, concerns material before the Commission said to be evidence that the State of New South Wales had, on 17 February 2022, "firmly foreshadowed that restrictions on unvaccinated employees would be lifted". Contrary to the applicant's submission, Commissioner O'Sullivan did not reject any such evidence. He made no reference to it at all. That is unremarkable given the nature of that material and the fact that the applicant made no submission about it before the Commissioner.
7. On appeal, the applicant relied upon a media release issued on 17 February 2022 to submit that, at the time, the Government was taking a staged and flexible approach to the easing of restrictions implemented to manage COVID-19. The applicant submitted that, at the point when he was dismissed, restrictions were not escalating and there was no evidence that any of the decision-makers believed that they would last indefinitely. However, the 17 February 2022 media release said nothing about the easing of vaccination requirements for health professionals. Further, it stressed the importance of the community getting booster vaccinations "to keep themselves, their family and the community safe" and stated that hotel quarantine would be maintained for unvaccinated travellers (albeit for a shorter period). The evidence does not assist the applicant. Accordingly, the submission that the NSW Government had firmly foreshadowed the lifting of restrictions on unvaccinated employees is misconceived, is not supported by the substance of the evidence that was before the Commissioner, and is rejected. We have otherwise addressed the submission above.
8. There was nothing unjust about the respondent's decision to terminate the employment of an employee who could not perform work - and who the respondent was required to direct not to work − for a period of unknown duration because of the employee's refusal to meet the preconditions for the performance of his work, namely, the vaccination requirements. While the fact of the recission of the vaccination requirements is not a matter that can be considered in determining the unfairness of the applicant's termination, its occurrence on 25 March 2024, more than two years after the termination of the applicant's employment, tends to reinforce the correctness of the Commissioner's finding.
9. We refuse leave in respect of this ground.

1. This ground challenges the Commissioner's finding at [106] that the Determination was lawful, based on the construction of s 116A of the HS Act. Section 116A is set out above in [10(21)] above. The particulars of Ground 2 are stated in the following terms:

"(1) The Commissioner erred (at [100]) 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 (at [101]-[102]) 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 (at [105]) 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 to not attend work or roster them off such that the employee was at all relevant times compliant with their obligations under the employment and the employment was not frustrated."

1. In his written submissions, the applicant repeated his 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 [102] 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 the immediate predecessor to PHO 3" (i.e., imposing the condition for workers to be vaccinated) and thus the Determination fixed a condition that a was already fixed under another law contrary to s 116A(1), and in that regard, the Commissioner's finding at [105] 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. Precisely the same submissions were advanced and addressed in the related proceedings in Larter v Health Secretary in respect of Murrumbidgee Local Health District [2025] NSWIRComm 6 at [61]-[79]. For convenience we reproduce below the substance of our assessment of each of these reasons in turn, as it applies to the applicant in these proceedings.
2. Commissioner O'Sullivan addressed the first aspect of the applicant's argument in relation to s 116A of the HS Act as follows:

"[99] 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.

[100] Subsections 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 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] NSWIRComm 163; (2004) 138 IR 147 at [10]; [2004] NSWIRComm 163. 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 his 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] NSWIRComm 404; (2003) 130 IR 284 at [150]; [2003] NSWIRComm 404 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.[4] 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).[5]
2. The balance of the applicant's submissions on Ground 2 do not address the remaining allegation that the Commissioner misconstrued the relevant PHO referred to in [52(3)]. 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 Third PHO in the context of Ground 1.
3. The additional (third and fourth) contentions raised by the applicant in the course of his written submissions, to which the respondent made no objection, are set out at [53] 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 himself 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 Third PHO, the applicant does not explain why the validity of the Determination necessarily depends upon it falling within the scope of the Third 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 PHOs (and relevantly for the applicant, the Third PHO) required the employee to be vaccinated "or as meaning that an employee was incapable of attending work", whereas (on the applicant's case) the Third PHO merely required the employer to direct the unvaccinated employee not to perform any work. For the reasons we have explained in the context of Ground 1, the applicant's characterisation of the Third 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 [117] 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 at [111] 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 [(at [114] and [115])] impermissibly had regard to evidence from the applicant for the purposes of the Commission proceedings about his 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 (at [116]) 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. In his written submissions, the applicant repeated his submissions at first instance by advancing the following five reasons in support of this ground:

(1) Firstly, the Commissioner erred in failing to find that the applicant was denied procedural fairness because he was not informed that the respondent was considering the Determination as part of the formal dismissal process. He only became aware of this when he received the termination letter. Further, the question was not whether he was aware that his failure to comply with the Determination was a consideration in his dismissal process, but whether the respondent provided procedural fairness in that respect.

(2) Secondly, the Commissioner erred by having regard (at [144] (sic, presumably [114]) and [115]) to evidence filed in the first instance proceedings to make a finding about the applicant's state of knowledge at the time of his dismissal.

(3) Thirdly, the Commissioner's finding that the applicant was not denied procedural fairness because he did not respond to the Second Show Cause Letter was misconceived and circular and disregarded the applicant's evidence as to why he did not respond.

(4) Fourthly, the respondent's erroneous understanding of the Third PHO (as requiring the applicant not to perform work, rather than requiring the employer to direct him not to attend work) infected the entire process.

(5) Fifthly, the respondent did not consider the applicant's individual circumstances, or whether termination of his employment was necessary when deciding to terminate his employment as the material provided to the Chief Executive was largely pro forma documentation and the Chief Executive was not involved in and did not approve the Second Show Cause Letter on 22 February 2022.

1. We deal with each of these reasons in turn.
2. As to the first reason, the Second Show Cause Letter referred to the requirement of NSW Health staff to meet the vaccination requirements of the Third PHO as a condition of continuing to work for NSW Health. That statement immediately followed a list of the applicable PHOs as well as the Determination. The content which followed was clearly addressed to the vaccination requirements referred to in these documents, which included the Determination. While the balance of the letter refers to "the PHO" (in this case, the Third PHO), a reading of that letter advanced by the applicant which excludes the Determination as forming a basis for the respondent's decision concerning the applicant's employment is unduly narrow and artificial. Further, as found by Commissioner O'Sullivan, at no point prior to the cross-examination of Ms Soliman in the proceedings below did the applicant make any claim that he was unaware that his failure to meet the requirements of the Determination would be a consideration in the termination of his employment. In any event, the applicant was clearly on notice that his employment may be terminated by reason of his inability to perform work as a result of his continuing refusal to comply with the vaccination requirements (whether as contained in the PHOs or the Determination), and he was given an adequate opportunity to respond to this notice.
3. As to the second reason, it is patently obvious that material received by the applicant in the course of these proceedings could not have informed his state of knowledge at the time that he was terminated. The reference at [114] to the applicant's evidence in the first instance proceedings and at [115] to the applicant's state of knowledge upon receipt of the respondent's brief of evidence in this matter, when read in context, served to emphasise the significance of the lack of evidence in the proceedings before Commissioner O'Sullivan that, prior to the applicant's dismissal, he was unaware that the Determination was a consideration in terminating his employment. If we are incorrect, and Commissioner O'Sullivan did in some way erroneously take into account the applicant's state of knowledge during the first instance proceedings in assessing his state of knowledge prior to his dismissal, our view is that this would not have made any practical difference to the result. Any finding that this gave rise to procedural unfairness would not have been sufficient to render the dismissal unfair for the purposes of s 84 of the IR Act, having regard to the mandatory effect of the Third PHO and the Determination.
4. As to the third reason, there is nothing circular about the Commissioner's finding at [116], nor does it fail to have regard to the reasons that the applicant gave for failing to respond to the Second Show Cause Letter. Commissioner O'Sullivan's reference to the applicant's failure to respond to the Second Show Cause Letter at [116] merely records the material (or lack of it) before the Chief Executive for consideration. Commissioner O'Sullivan went on in that same paragraph 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.
5. The fourth reason assumes an interpretation of the Third PHO that we have rejected in dealing with Ground 1. Accordingly, it does not advance the applicant's case.
6. The final reason advanced by the applicant, set out above at [72(5)], is largely duplicated in Ground 4 and we have addressed it in that context. That the respondent issued the Second Show Cause Letter without the knowledge or approval of the Chief Executive is immaterial in circumstances where that letter formed part of the brief provided to the Chief Executive in support of the recommendation that the applicant's employment be terminated.
7. Leave in respect of this ground of appeal is refused.

1. The applicant complains that Commissioner O'Sullivan erred at [118]-[121] in finding that the applicant had not established that his dismissal was harsh. The applicant particularises that complaint in the following terms:

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

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

(b) He had mortgages and six children to support;

(c) He was working at McDonalds cleaning toilets;

(d) He had to use up the money in his superannuation to start a business as a sole trader;

(e) He has received no payments from the business as at the hearing date and no expenses had yet been paid out of the money that he had received.

(2) The Commissioner failed to have regard the applicant's submissions that dismissal was harsh as because of evidence was that as at 2 March 2022, those who were compliant with the vaccination requirements would have no less risk of transmitting COVID19 in the workplace compared with the applicant;

(3) The Commissioner failed to have regard to the evidence that as at the date of his dismissal, on 2 March 2022, the NSW Government had firmly indicated that it would be easing restrictions in the State. The Commissioner also failed to give any consideration to the evidence of the comments made by Premier Dominic Perrottet (Exhibit 3) in which the Premier accepted that the state of knowledge of the New South Wales Government was that COVID-19 vaccines had no effect on transmission in the correct (sic) environment."

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

(1) Firstly, the Commissioner's finding made no mention of a number of material considerations and mitigating factors that favoured a finding of harshness in relation to the applicant's dismissal, including those outlined at [80(1)] above as well as the applicant's unblemished record and longstanding service.

(2) Secondly, the Commissioner erred in failing to consider whether the applicant could have been allowed other alternatives to dismissal, including the taking and using up of his very significant leave entitlements.

(3) Thirdly, in assessing harshness, the Commissioner should have considered the announcement made by the NSW Government on 17 February 2022 that it would ease restrictions from 18 February 2022.

(4) Fourthly, the Commission "remains ignorant" of the matters taken into account by the Chief Executive in his decision to terminate the applicant's employment, as both of the respondent's witnesses gave evidence that they were not the makers of that decision, and while the Commission had the briefing papers provided to the Chief Executive, the witness who produced that material was unable to say whether or how the Chief Executive considered those matters, what weight he gave to those matters or what other factors he may have taken into account in making the decision.

(5) Fifthly, there was no evidence that the Chief Executive ever considered whether dismissal was the only or appropriate response in all of the circumstances, particularly when the Third PHO was only able to operate for 90 days.

1. We address each of these reasons in turn.
2. As to the first reason, 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]. The Commissioner expressly referred to the harshness visited upon the applicant personally at [121], noting that it was partly a consequence of choices that he had made. 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.
3. As to the second reason advanced by the applicant, the evidence before the Commission was that the applicant had made no application to access either his annual leave or his long service leave, despite an express invitation from the respondent to do so in the First Show Cause Letter. 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.
4. The third reason concerns the absence in the Commissioner's reasons of any reference to the applicant's submissions concerning the harshness of his dismissal in light of the media release of 17 February 2022 about the easing of restrictions on 18 February 2022. As we said when addressing this material in the context of Ground 1, the media release did not concern the easing of vaccination requirements for health professionals. Accordingly, there was no error made by the Commissioner in failing to refer to it.
5. The particular at [80(3)] above to which the third reason relates also asserts error in the failure of the Commissioner to make reference to the views of the then NSW Premier concerning the efficacy of vaccination, expressed in a radio interview which occurred more than 12 months after the termination of the applicant's employment. That evidence was plainly material that was unavailable at the time of the applicant's dismissal. Accordingly, it was not a matter that Commissioner O'Sullivan was required or entitled to take into account in determining the fairness of the applicant's dismissal pursuant to the IR Act.6
6. The fourth reason reagitates a procedural fairness issue raised by the applicant under Ground 3 and has been addressed in that context.
7. The final reason contends that the respondent's failure to consider whether termination was the only appropriate response when the Third PHO was operative for only 90 days rendered his dismissal harsh. One of the difficulties with that argument (which leads us to reject it) is that, notwithstanding the time-limited nature of the Third PHO, the Determination made vaccination a condition of the applicant remaining in employment. We have addressed this issue in the context of Ground 2.
8. Another difficulty is that 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 Third PHO, in force at the time of the applicant's dismissal, to the First and Second PHOs, 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.
9. Leave in respect of this ground of appeal is refused.

1. The applicant contends that the Commission erred in finding at [60] 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 his evidence would not have assisted the respondent). In support of this ground of appeal, the applicant submits that:

(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 the findings at [112] and [115] that the Chief Executive had taken all relevant matters concerning the applicant into consideration when making the decision to terminate him because:

(a) The material in the termination brief given to the Chief Executive was largely pro forma and only contained one or two sentences about the applicant's individual circumstances;

(b) The termination letter was signed on the same day that the Chief Executive received the termination brief; 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, the criticism of the applicant for not expressly alerting the respondent to his 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 his dismissal.

1. As to the first and third submissions at [91] above, the Commissioner's decision included the following findings concerning the applicant's submission that a Jones v Dunkel inference was available from the failure of the respondent to call the Chief Executive of NSW Ambulance:

"[59] 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].

[60] 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."

1. The finding at [60] of the decision is not entirely supported by the documentary material before the Commission during the initial proceedings. The initial application, filed on 24 March 2022, includes the following statement in response to the request to set out "the reasons why you believe your dismissal was harsh, unreasonable or unjust":

"The points raised in reply to NSW Ambulance letter of 22 February (sic) were not addressed."

1. The applicant did not respond to the 22 February 2022 letter. Accordingly, it appears that the applicant's intended submission was that the 22 February 2022 letter did not address the points raised by the applicant in his 15 February 2022 letter. The applicant expanded upon this in his evidence-in-chief before the Commission as follows:

"I do not believe that the NSW Ambulance letter of 22 February substantively responded to or engaged with the matters and queries that I had raised in my 15 February 2022 letter. Instead, it appears to me to be a boilerplate response in respect of the suggested benefits of vaccination against Covid-19."

1. Given that material, the applicant arguably put in issue the basis of the respondent's decision to terminate him and whether the matters that he had raised in his letter of 15 February 2022 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. As noted by Commissioner O'Sullivan at [112], the respondent relied on the brief sent to the Chief Executive, which was signed off by him, and in which the matters raised by the applicant in response to the First Show Cause Letter were listed. Further, the applicant's letter to the Chief Executive formed part of that brief. Accordingly, the position is different to what occurred in Wood, on which the applicant relies. In that matter, Transport for NSW called no evidence from persons who could have shed light on central matters in issue. Nor did the decision in Wood establish a principle of general application.
3. 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 for the reasons set out above at [91(2)]. It is difficult to see the relevance of that submission to this 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.
4. Further, it is difficult to see the relevance of the decision of Commissioner O'Sullivan at [115] to the matters considered by the Chief Executive in making his decision to terminate the applicant's employment. Instead, that paragraph is directed at a complaint about the failure of the respondent to put the applicant on notice that it was considering the operation of the Determination in the context of the proposed dismissal of the applicant, as set out by the Commissioner at [113]. We have addressed that issue in the context of

Ground 3. 5. 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, despite this error, we nonetheless find that the Commissioner's decision that the applicant's dismissal was not procedurally unfair was available to him. 6. If we are incorrect, given the absence of evidence about the process undertaken by the Chief Executive in considering the termination brief, we nonetheless find that any inference that the failure to call the Chief Executive would not have assisted the respondent was still not sufficiently significant to render the dismissal unfair for the purposes of s 84 of the IR Act, having regard to the mandatory effect of the Third PHO and the Determination. 7. Accordingly, we dismiss this ground of appeal.

"The Commissioner erred by failing to receive and consider the evidence tendered by the applicant, namely Exhibit 3, being a public statement by Premier Perrottet accepted that the state of knowledge of the New South Wales Government was that COVID-19 vaccines had no effect on transmission in the correct environment when that evidence was relevant and probative, as set out above".

1. In support of this ground, the applicant makes the following submissions:

(1) Firstly, the evidence went to the question of harshness as well as justness of dismissal in circumstances where the Commissioner has made findings at [77] that, at the time of dismissal, there was no reason for the respondent to consider that the Third PHO would abate at any point in the future, such that the applicant could return to work.

(2) Secondly, the Premier's comments were "an admission that the position of the New South Wales government is that there is no evidence that vaccines reduce transmission in the current environment" which "undercuts a large sway of the rationale both for the original decision ... [and] any proposition that reinstating Mr Larter would pose a risk to the health and safety of other employees or patients, by reason of him not being vaccinated".

(3) Thirdly, there is a fundamental difference between what would be authorised fairly to deal with an employee who may pose a threat to himself and an employee who may pose a threat to patients or other staff.

1. This ground also lacks merit. The marking of the evidence in issue as Exhibit 3 demonstrates that the Commission accepted it into evidence. That Commissioner O'Sullivan did not refer to the statement of Premier Perrottet on 27 February 2023 in determining whether the applicant's dismissal was unfair was entirely orthodox, as it postdated the applicant's dismissal.[7] It was therefore material that could only be relevant to remedy. As the application was dismissed, that issue did not arise. Accordingly, we also refuse leave on this ground.

1. It is convenient to deal with Grounds 7 and 8 together. They impugn the Commissioner's ultimate determination of the matter and the consequent failure of the Commission to award the applicant any remedy. No specific error is asserted. In his 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. The applicant also relies upon "the matters set out above". This merely duplicates the matters raised in the course of Grounds 1-6. To the extent that the applicant relies upon his submissions in support of leave to appeal, they duplicate the matters pleaded by the applicant in Grounds 1 and 2. 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, 7 and 8.

1. Accordingly, the Commission makes the following orders:

(1) Leave to appeal is refused in respect of Grounds 1, 3, 4, 6, 7 and 8.

(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 NSW Ambulance [2024] NSWIRComm 1030.

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

[3] Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [152], citing Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; [2013] NSWCA 180 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]; [2003] FCAFC 184.

[4] 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] FCAFC 26; (2007) 161 IR 307 at [32]; [2007] FCAFC 26.

[5] 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].

[6] 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].