Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - public health order requiring vaccination against COVID-19 - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

• [1] Ms Mariam Gharib (the Applicant) was employed by dnata Airport Services Pty Limited (the Respondent), at Sydney International Airport Precinct (Sydney Airport) prior to her dismissal on 11 November 2021. The Applicant was employed in the position of Passenger Services Delivery Agent (the PSA Role).

• [2] The Applicant was dismissed because she did not comply with the requirement to provide proof of vaccination against the COVID-19 virus. On 2 December 2021, the Applicant lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that her dismissal was harsh, unjust and unreasonable according to the criteria in s 387 of the Act. The Respondent denies that allegation.

• [3] Two of the Applicant's co-workers, Ms Joanna Hadjipavli and Ms Wafica Mourtada, were dismissed at the same time and in the same general circumstances as the Applicant. Ms Hadjipavli and Ms Mourtada also made applications for unfair dismissal remedies, and I heard the Applicant's, Ms Hadjipavli's and Ms Mourtada's unfair dismissal claims against the Respondent in the course of the hearing on 10 and 11 February 2022. Each of the Applicants gave evidence in their own case, and where relevant, evidence in the case of each other Applicant. The Respondent adduced evidence from Mr Samuel Maybury, National Human Resources Manager of the Respondent.

• [4] In the period leading up to the dismissals there were several public health orders made by the NSW Minister for Health pursuant to s 7 of the Public Health Act 2010 (NSW) (the PH Act) in response to a COVID-19 outbreak in Sydney, including:

(i) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2021 (the Public Health Order), which operated from 28 June 2021 at midday until the beginning of 1 September 2021; and

(ii) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 (the Updated Public Health Order), which operated from 1 September 2021 until the beginning of 27 November 2021,

(together referred to as the Public Health Orders).

• [5] The Public Health Orders included a series of vaccination requirements for nominated workers to:

(i) receive their first dose of a COVID-19 vaccine by 28 June 2021; and

(ii) receive their second dose of a COVID-19 vaccine:

(a) within 3 months of having received the first dose; or

(together referred to as the Vaccination Requirements).

• [6] The Chief Health Officer granted an exemption to the first dose Vaccination Requirement in the Public Health Order until 6 July 2021 for certain employees.

• [7] The Public Health Orders also had an exemption to the Vaccination Requirements where a person had a medical contraindication to the COVID-19 vaccines certified by a medical practitioner and the Chief Health Offer.

• [8] The Public Health Orders each referred to the NSW Airport and Quarantine Workers

Vaccination Program (the Vaccination Program), a document approved by the Chief Health

Officer and published on the website of NSW Health, which listed the classes of nominated

workers subject to the Vaccination Requirements, as varied from time to time.

• [9] The Vaccination Program identified customer service agents, including those performing the PSA Role, as a class of nominated workers subject to the Vaccination Requirements if they:

(i) provided services to relevant persons (excluding international flight crew members who were not ordinarily an Australian resident), from 28 June 2021 until 6 July 2021;

(ii) provided services in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 6 July 2021 until 1 November 2021; and

(iii) provided services at Sydney International Airport Terminal 1 in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 1 November 2021.

• [10] The Public Health Orders define a relevant person to be:

(i) arrives in New South Wales by aircraft, whether the flight originates interstate or overseas, and

(ii) has, within 14 days immediately before the person's arrival, been in a country other than Australia or New Zealand, or

(b) a person who arrives in New South Wales by aircraft from New Zealand and a second person on the aircraft, whether a crew member or passenger, has, within 14 days immediately before the first person's arrival, been in a country other than Australia, New Zealand, the Cook Islands or Niue, or

• [11] An airport worker listed in the Vaccination Program was not able to enter, or provide services in, relevant areas of Sydney Airport, in the course of their employment if they did not comply with the Vaccination Requirements or have an exemption. The Vaccination Program as at 25 June 2021 included the following class of airport workers:

"Airport staff, airline/freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers, security and other private contractors providing services to relevant persons (excluding international flight crew members who are not ordinarily an Australian resident."

• [12] The Vaccination Program updated as at 6 July 2021 included the following class of airport workers:

"Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft."

• [13] Following the above change, the "Red Zone" at Sydney Airport referred to all areas after the passport control and security screening areas (which included relevant persons undertaking international transfers), all arrivals areas, and the Level 3 Administration area (which included persons who entered other Red Zone areas).

• [14] On 6 July 2021, NSW Health provided guidance by email regarding who was covered by the Vaccination Requirement. That email stated:

"Staff must be vaccinated if they answer 'Yes' to any of the following:

1. The employees are listed in the NSW Airport and Quarantine Workers Vaccination Program in the NSW Testing Program (page 3)

2. The employees enter the designated Red Zones within Sydney Airport

3. The employees come in contact with international flight crew

4. The employees come in contact with arriving international passengers

5. The employees board an aircraft (where relevant persons* are or have been)

In the event staff do not meet the above criteria, NSW Health would still strongly recommend vaccination."

• [15] The Respondent was required to ensure that its employees covered by the Vaccination Program complied with the Vaccination Requirements. An employee listed in the Vaccination Program was required to produce their vaccination evidence for inspection if required to do so by the Respondent (Proof of Vaccination Requirement).

• [16] It is an offence, punishable by monetary penalties and/or imprisonment, to fail to comply without reasonable excuse with the Public Health Orders.

• [17] The Applicant commenced employment with the Respondent on 23 July 2018 in the PSA Role. Her last working shift for the Respondent was on 4 July 2021.

• [18] On 1 July 2021, Mr Albert Bollard, Airport Services Manager of the Respondent issued a memorandum dated 30 June 2021 to all employees of the Respondent in NSW, including the Applicant, regarding the Vaccination Requirement. The memorandum included the following:

"... we have no choice but to inform you that having your COVID-19 vaccination has now become an inherent requirement of an employee holding a role on airport.

The minimum requirement to continue working in the role is to have at least one dose of a COVID-19 vaccination or a confirmed date for vaccination prior to 6 July 2021."

• [19] On 3 August 2021, the Passenger Services Manager of the Respondent, Ms Dennaoui sent an email (the August Email) to the Applicant that included the following:

"As per the public health order we require anyone who is working within the red zone as of 6th July 2021 to have at least one dose of the COVID-19 vaccination.

We are reaching out to you as we are yet to hear from you regarding your intention to be vaccinated. As entering the red zone is an adhered [sic] requirement of your role and we would like to further understand what your intentions are moving forward.

If you could please update us with your intentions to be vaccinated by Sunday 08th August 2021."

• [20] On 6 August 2021, the Applicant responded to the above email as follows:

Is there any opportunity for positions out of red zones atm, as i would really appreciate staying at the company during these times.

• [21] On 9 August 2021, Ms Dennaoui, responded to the above email of the Applicant at follows:

"Kindly be advised that due to the recent reduction in volumes across our Cargo and Ground Service businesses, at this stage we have no vacancies in other areas of the business.

Please feel free to apply for any positions of interest should an Expression of Interest be sent out to the team.

We would like to schedule a meeting via teleconference with HR to discuss this matter further, can you kindly advise your availability this week?"

• [22] The Applicant did not attend any meetings with Human Resources as requested above.

• [23] On 14 September 2021, the Respondent sent a letter (the September Letter) to all Red Zone employees at Sydney Airport, including the Applicant, who had not yet complied with the Proof of Vaccination Requirement over the previous 12 week period. That letter relevantly provided as follows:

"Your role as a Passenger Services Delivery Agent at Sydney Airport is one of the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer's directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date we have not received an update from you whether or not you have decided to receive the COVID-19 vaccine.

As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.

We now require you to confirm in writing by no later than 21 September 2021 whether you:

(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or

• [24] On 20 September 2021, the Applicant responded to the above letter as follows:

"I would like to note that I have not formally declined teleconference, and would add that this situation has caused myself undue stress and anxiety, and pressured to make a medical decision by a certain time. I hope you can understand that this has been a difficult time, and it has been difficult to make an informed decision.

As I understand and have seen our Prime Minister of Australia Scott Morrison has spoken numerous times advising that the vaccine is not mandatory. Currently there is a case before the courts regarding the validity of the current public health mandates placed by NSW Health.

Please Know [sic] that this is a matter I take very seriously, and once I have an informed decision without any pressure I will be able to advise you of an intent or outcome."

• [25] On 21 September 2021, Mr Bollard responded to the above email of the Applicant as follows:

Weeam has forward [sic] your email below to me for review given your request to wait for a ruling from the courts.

You may have seen from a recent port update that a large number of our client carriers will recommence or increase significantly flying passenger services to and from SYD in November and December of this year. This leave [sic] us a very short period of time to recruit, train/cross train in order to be ready for this increase to somewhere in the region of 260 fights per week. Added to this business imperative is the Public Health Orders governing airport and quarantine workers and the requirement to be vaccinated. What this means is that compliance with the relevant legislation, specifically the Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 has become an inherent requirement of your role as a passenger services agent.

It is vital therefore that we look to stand up our team members to prepare for this return to flying and ensure they are able to return to work in full compliance with the relevant legislation. Secondly we need to understand based on the legislative requirement in relation to vaccination, what our people's intentions are so we can provide them with guidance and based on those intentions, plan accordingly in the very short time left to us.

We, dnata, are obliged to comply with the legislation as it stands in NSW, including the Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021, notwithstanding any action that may be before the courts. Under the legislation relevant employees also have an obligation to comply and we are simply seeking to understand your intent to comply with the legislation as it stands.

We understand that this is a decision not to be taken lightly and in order to provide some additional time, will extend the date by which you will be required to inform us of your intent until Thursday 30th September. Unfortunately we will not be able to extend beyond that date."

• [26] The Applicant did not respond to the above email on or before 30 September 2021.

• [27] On 6 October 2021, the Respondent sent a letter (the October Letter) to all Red Zone employees at Sydney Airport who had not yet complied with the Proof of Vaccination Requirement over the previous 15 week period. That letter relevantly provided as follows:

"Your role as Passenger Service Delivery Agent at Sydney Airport is one [of] the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer's directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date, we have not received proof of vaccination or an exemption for you. dnata is required under the Public Health Order to ensure that employees comply with the vaccination requirement, and non-compliance would put dnata at risk of fines for breaching the Order.

As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.

You are directed to confirm by no later than 1700 AEDT on Wednesday 13 October 2021 whether you:

(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or

(b) do not intend to get vaccinated and any reasons why dnata should not terminate your employment based on your incapacity to perform the inherent requirement of your role to enter the Sydney Airport and/or refusal to comply with a lawful and reasonable direction of dnata".

• [28] On 12 October 2021, the Applicant responded to the above letter as follows:

"If you could please consider my position that I am not declining, or refusing and I wish to keep and return to my position at dnata. Please understand I need to be comfortable with the decision I make moving forward.

Also things I am considering is that I should be given all information regarding the vaccine, decision made without undue pressure, and [an] opportunity to seek more details about the vaccine.

I am still waiting on further medical advice and details regarding this situation to be able to make a full valid consent.

In a previous email to Weeam I requested if I could move to a position that is not in [the] red zone to able to continue working for Dnata, I wasn't able to be assisted as a current employee. If this is an option that will be greatly appreciated. In my time at Dnata I have dedicated my time to my team, put in extra hours, working overtime during holidays, worked through cancelled flights Overnights [sic] I work with pride and love my position at Dnata.

This has become beyond stressful for myself to deal with. I will made [sic] an appointment in the next few weeks, It would be greatly appreciated if you are able to consider my situation and are able to allow me to continue working in a green zone or wait until I have the appointment.

• [29] On 14 October 2021, Mr Bollard responded to the above email as follows:

"Within the passenger services operation there are no roles which do not require team members to be vaccinated in accordance with the health orders. Your only option is currently a transfer to a warehouse role within or [sic] cargo business. The majority of roles in cargo do not currently require vaccination but you would need to move off your current EBA and on to the Ramp and Cargo EBA. The transfer would be permanent. You could of course progress thought the various roles in cargo should positions become available.

If you wish to consider this as an option could you please respond in the coming days as we are currently recruiting for cargo and there may be limited other opportunities. If it is your wish to remain in passenger services you will need to provide proof of a vaccination appointment and proof of vaccination once you have attended that appointment."

• [30] The Applicant did not thereafter respond or request a transfer a warehouse role within the Respondent's cargo business.

• [31] On 1 November 2021, the Applicant sent an email to Ms Dennaoui, stating in part

"...could I come in and show the vaccin cert [sic] instead of emailing it through."

• [32] Also on 1 November 2021, Ms Dennaoui responded to the above email stating

"... you will need to send the Vaccination certificate to COVAX mailbox COVAXSYD@dnata.com.au as the company needs to have records of the details as evidence that you in compliance with the Public Health Order, this is a confidential platform."

• [33] On 5 November 2021, the Respondent requested the Applicant attend a formal meeting on 9 November 2021. The meeting invitation confirmed:

"We are requesting a formal meeting with yourself, regarding the public health order and your inability to comply with the public health order and receive at least the first dose of the covid-19 vaccine."

(a) A follow up email was sent to the Applicant (via her work email address) as the email sent on 5 November 2021 was undelivered;

(b) The Applicant responded to the email requesting details of the meeting;

(c) In response, the Respondent sent an email to the Applicant providing details of the meeting and how it would be conducted;

(d) The Applicant responded stating that she was unavailable on 9 November 2021; and

(e) The Respondent sent a further email to the Applicant requesting she provide an alternate time and date for the meeting within the next 72 hours, however the Applicant did not respond to the Respondent's email.

• [35] On 11 November 2021, the Respondent issued a letter to the Applicant terminating her employment (the Termination Letter). The Termination Letter provided that the reasons for dismissal were:

"1. You have failed to comply with the Order and consequently you are prohibited by law from performing the inherent requirements of your role to enter Sydney Airport and work in the "Red Zone". As a result, as a business we are unable to engage with you as a Passenger Services Delivery Agent and are unable to provide you with meaningful work; and

2. You have failed to comply with dnata's lawful and reasonable direction to comply with the requirements in the Order. Despite being provided with a reasonable opportunity over five (5) months to comply with the direction you have failed to do so and have provided no reason for your refusal to comply with the Direction. This amounts to misconduct."

• [36] Later on 11 November 2021, at 5:42pm, following the Termination Letter being sent, the Applicant responded stating

"I have forwarded you the vaccination as you said in the last email, so i am a bit confused."

• [37] It was the Applicant's evidence that shortly before her termination she sent proof of her vaccination status to the Respondent from her personal email, however the message sat in her outbox and did not go through.[1]

• [38] On 18 November 2021, the Respondent sent an email to the Applicant confirming that the Respondent had no record of her providing her proof of vaccination.

• [39] During the hearing of the matter the Applicant produced, at the request of the Commission, a vaccination certificate dated 18 October 2021 that recorded that the Applicant had received vaccinations with the Pfizer vaccine on 23 September and 18 October 2021.

• [40] The Applicant noted she had been a responsible employee of the Respondent for three years.

• [41] Since the request for vaccination she submitted that she had kept the Respondent informed that it was a decision that she need to make and that it may take some time.

• [42] Prior to receiving her letter of dismissal, there was no statement or communication that she was to be terminated by a specific date if a vaccination certificate was not presented.

• [43] The Applicant noted that she advised the Respondent at the end of October 2021 that she in fact received and had her vaccination, and asked if there were alternative options regarding showing/proving her vaccination.

• [44] The Applicant submitted that she sent multiple emails to the Respondent from June 2020, asking if she could move into a position (green zone) where no vaccination was required, while she waited to make a decision regarding the vaccination. She claimed other staff of the Respondent had the opportunity to work unvaccinated in those areas. Her intention was that she was waiting on an EOI for those positions.

• [45] The Applicant submitted that all communication sent up to the termination letter being sent did not specify a date that she would be terminated. She responded to all emails and had

consistently mentioned to the Respondent the difficulty and stress that she had been facing regarding her vaccination decision.

• [46] While she was unable to do team meetings during work hours prior to her termination, she was happy to correspond via email.

• [47] The Respondent submitted that the matters in dispute were:

(a) Whether the PSA Role was required to work in the Red Zone, which was subject to the Vaccination Requirement;

(b) Whether the Applicant complied with the Proof of Vaccination Requirement, in circumstances where the Respondent denies it has received any evidence (of her vaccination against COVID-19); and

(c) Whether the Applicant's dismissal was harsh, unjust or unreasonable under s 387 of the Act.

• [48] The Respondent noted that at the core of the Applicant's submissions is the inference that the Applicant did not understand her ongoing employment with the Respondent was at risk if she did not meet the Vaccination Requirements because no 'particular date' was set for when the Respondent would make a decision about her ongoing employment. The Respondent submitted that an objective analysis of the events leading to the dismissal over a 4.5 month period does not provide a rational basis for this belief.

• [49] The Respondent submitted that s 387(a) of the Act requires that there is a valid reason for the dismissal related to the Applicant's capacity or conduct. There were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act:

(a) Reason 1 - The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirement; and

(b) Reason 2 - The Applicant failed to comply with the Respondent's lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.

• [50] The Respondent submitted that the concept of "capacity" in s 387(a) of the Act goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have, or maintain, the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[2] The PSA Role required the Applicant to enter Sydney Airport and work in the Red Zone areas, being the environment where international arrivals and flight crew members are or have been. The Applicant could not reasonably perform the inherent requirements of the PSA Role to provide passenger services at Sydney Airport by only performing limited duties outside the Red Zone areas. Accordingly, the Respondent submitted that the Public Health Orders applied to the Applicant in relation to her employment with the Respondent.

• [51] The Respondent further submitted that the Applicant did not comply with the Proof of Vaccination Requirement prior to her dismissal on 11 November 2021.

• [52] In response to the Applicant's assertion that she had received a second dose of a COVID-19 vaccine in October 2021, the Respondent submitted that no proof of vaccination was provided to the Respondent prior to 11 November 2021. This includes no vaccination certificate for her first dose, and no evidence of her appointment to receive her second dose in compliance with the Vaccination Requirements in the Updated Public Health Order. Therefore, the Proof of Vaccination Requirement had not been complied with by the Applicant at the date of her dismissal and the Respondent had no evidence to suggest that she was able to return to work in the immediate future.

• [53] Regarding failure to comply with lawful and reasonable direction, the Respondent submitted that the following directions given to the Applicant during meetings and correspondence in August, September and October were lawful and reasonable.

(a) a direction to confirm their intention to comply with the Vaccination Requirement and Proof of Vaccination Requirement within the 7 day timeframe for the response (or as extended by dnata); and

(b) a direction to provide any reasons why their employment should not be terminated for not complying with the Vaccination Requirements and Proof of Vaccination Requirement, including any relevant medical information, within the 7 day timeframe for the response.

• [54] The Respondent submitted that the Public Health Orders provided that the employer of a nominated person must ensure they comply with the Vaccination Requirements and that a nominated person must produce the nominated person's vaccination evidence for inspection by their employer if requested to do so.

• [55] The Respondent noted that an employee not complying with a mandatory vaccination requirement in Public Health Order has been found by the Commission to be a valid reason for dismissal.[3] The Respondent submitted that it provided the Applicant with approximately 4.5 months to comply with the Public Health Orders. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19.

• [56] The Respondent submitted that where the employee is aware of the precise nature of the employer's concerns and has a full opportunity to respond to those concerns, this would ordinarily be enough to satisfy the requirements of s 387(b) and (c) of the Act. The Respondent submitted that it notified the Applicant on numerous occasions of concerns it held regarding the Applicant's non-compliance with the Vaccination Requirements before the decision to terminate her employment was made on 11 November 2021. The Applicant was made aware in writing in the October Letter that the Respondent would be considering terminating her employment if she did not provide proof of vaccination. Further, the letters set out in plain and clear terms that such a dismissal would be based on her incapacity to perform the inherent requirements of the PSA Role, being to enter Sydney Airport, and/or refusal to comply with a lawful and reasonable direction of the Respondent.

• [57] The Respondent noted that the Applicant did not request a support person to participate in any part of the process adopted by the Respondent regarding the Vaccination Requirement in the Public Health Orders.

• [58] The Respondent noted that the airline industry was one of the first industries where the NSW Minister for Health issued Vaccination Requirements for workers under s 7 of the PH Act. This reflected the higher risk to public health of COVID-19 being introduced and transmitted from overseas arrivals at airports, including Sydney Airport. As an employer of airport workers covered by the Vaccination Requirements in Public Health Orders, the Respondent has had to adapt to, and comply with, these requirements. The Respondent further noted that there is no discretion for the Respondent to not comply, that the Respondent has a specific obligation under the Public Health Orders to ensure its employees covered by the Vaccination Requirements comply, and is subject to penalties if it does not meet this obligation.

• [59] The Respondent submitted that there were no alternative duties available to the Applicant. While the majority of the cargo services area of the Respondent's business was not subject to the Vaccination Requirements and not considered part of the Red Zone, the Respondent had issued several Internal Expressions of Interest for positions in its Cargo business since July 2021. On 6 August 2021, the Applicant requested any opportunity for positions outside of the Red Zone. However, at that time there were no current vacancies. The Applicant made a second request on 12 October 2021 and was told she could request a permanent transfer to a warehouse role with the cargo business. The Applicant was instructed to respond to Mr Bollard in the coming days if interested as the Respondent was at that time recruiting for cargo. Ms Gharib did not respond or request a transfer.

• [60] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.

• [61] There is no dispute between the parties and I am satisfied on the evidence that:

(a) The Applicant's application for unfair dismissal was made within the period required in s 394(2) of the Act;

(b) The Applicant was a person protected from unfair dismissal;

(c) The Small Business Fair Dismissal Code did not apply to The Applicant's dismissal; and

(d) The Applicant's dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

• [62] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

• [63] It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[4] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded"[5] and should not be "capricious, fanciful, spiteful or prejudiced."[6]

• [64] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[7] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant's capacity or conduct (including its effect on the safety and welfare of other employees).[8]

Consideration as to whether there was a valid reason

• [65] There is no dispute that the Respondent was subject to the Public Health Orders, or that the Public Health Orders applied to the Applicant in relation to her employment with the Respondent.

• [66] I note that there were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act. They were:

(a) The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirements; and

(b) The Applicant had failed to comply with the Respondent's lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.

• [67] Regarding the issue of inherent requirements, there is no dispute that the Respondent was subject to the Public Health Orders. On 6 July 2021, NSW Health provided guidance regarding which employees were covered by the Vaccination Requirements. The Vaccination Program updated as at 6 July 2021 included the following class of airport workers:

"Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft."

• [68] Unlike many COVID-19 vaccination matters, and in particular the applications by the Applicant's co-workers Ms Hadjipavli and Ms Mourtada, the Applicant in fact apparently received vaccinations with the Pfizer vaccine on 23 September and 18 October 2021. The Applicant failed, however, to provide proof of vaccination to the Respondent.

• [69] I consider that the direction to provide proof of vaccination was:

(a) lawful, because it related to the subject matter of the Applicant's ability to lawfully attend work in circumstances where the Vaccination Requirement under the Public Health Orders applied to her employment; and

(b) reasonable, because the Respondent had an obligation under the Public Health Orders to ensure employees complied with the Vaccination Requirement, and could be fined if an employee did not comply.

• [70] Compliance with the Public Health Orders was not an optional matter for the employer of a nominated person, such as the Respondent. Compliance with the Public Health Orders was not an optional matter for a nominated person if they wanted to undertake the prescribed work, such as the Applicant. An employee not complying with a mandatory vaccination requirement in a Public Health Order has been found by the Commission to be a valid reason for dismissal.[9]

• [71] The Applicant's conduct in not promptly advising the Respondent of her vaccination status belies any reasonable explanation. In particular:

(a) In the September Letter, the Applicant was clearly advised of the requirement to confirm in writing her vaccination status by no later than 21 September 2021;

(b) The Applicant received the first vaccine dose on 23 September 2021;

(c) By the October Letter, the Applicant was advised she could not work until she provided proof of vaccination, and if she did not intend to get vaccinated, provide any reasons "why dnata should not terminate your employment based on your incapacity to perform the inherent requirement of your role";

(d) In her email in response on 12 October 2021, the Applicant misleadingly stated "Also things I am considering is that I should be given all information regarding the vaccine, decision made without undue pressure, and opportunity to seek more details about the vaccine. I am still waiting on further medical advice and details regarding this situation to be able to make a full valid consent";

(e) On 14 October 2021, the Applicant was advised "If it is your wish to remain in passenger services you will need to provide proof of a vaccination appointment and proof of vaccination once you have attended that appointment"; and

(f) The Applicant received the second vaccine dose on 18 October 2021.

• [72] While it is correct to observe that on 1 November 2021, the Applicant sent an email to Ms Dennaoui, stating in part "...could I come in and show the vaccin cert [sic] instead of emailing it through", it is also clear that shortly thereafter Ms Dennaoui responded stating "... you will need to send the Vaccination certificate to COVAX mailbox COVAXSYD@dnata.com.au as the company needs to have records of the details as evidence that you in compliance with the Public Health Order, this is a confidential platform". The Applicant did not comply with that direction.

• [73] On 5 November 2021, the Respondent requested the Applicant attend a formal meeting on 9 November 2021. The meeting invitation confirmed:

"We are requesting a formal meeting with yourself, regarding the public health order and your inability to comply with the public health order and receive at least the first dose of the covid-19 vaccine."

• [74] The Respondent's attempts to re-arrange a meeting with the Applicant were met with resistance from the Applicant.

• [75] The Respondent provided the Applicant with approximately 4.5 months to comply with the Public Health Orders. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19, and thereafter advise of such vaccination.

• [76] Quite extraordinarily, notwithstanding that the Applicant received her first vaccine dose 49 days before dismissal and her second vaccine dose 24 days before dismissal, the Applicant took no steps to ensure the Respondent was advised of her vaccination status but for offering to "...show the vaccin cert [sic] instead of emailing it through." That was despite numerous communications from the Respondent advising of the need for such proof.

• [77] I find that the Applicant failed to comply with the Respondent's lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021, particularly after 23 September 2021.

• [78] The Applicant was notified of the reasons for her dismissal in the Termination Letter.

• [79] The Applicant was given opportunities to respond, and did in fact respond, to the reason for her dismissal in her written communications to the Respondent in the period leading up to her dismissal.

• [80] Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to her capacity.

Unreasonable refusal to allow a support person (s 387(d))

• [81] The Applicant was offered a support person for the meeting to be held on 9 November 2021.

Warnings of unsatisfactory performance (s 387(e))

• [82] The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

• [83] The Respondent is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of the Respondent's enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant's dismissal.

• [84] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [85] I do not consider that there was any unfair treatment of the Applicant compared to other employees. I accept Mr Maybury's evidence that there were 19 employees in total in NSW who did not comply with the Vaccination Requirements and each subsequently had their employment terminated.

• [86] After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that the Respondent's dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.

• [87] The Respondent was required to comply with the Public Health Orders. The effect of the Public Health Orders was that the Applicant was unable to undertake work at the Respondent from 4 July 2021. There were no alternative duties available for the Applicant.

• [88] Were I to have found that one or more factors arising pursuant to s 387 tended towards a finding that the dismissal of the Applicant was harsh, unjust or unreasonable, I would nonetheless have concluded, in applying a "fair go all round",[10] that no remedy should flow to the Applicant. The Respondent took numerous comprehensive steps to ensure the Applicant was aware of the Vaccination Requirements, and the need to advise of compliance with that requirement. The Applicant did almost nothing to advise of her compliance with the the Vaccination Requirements, and the Respondent reasonably thought until at least the second day of the hearing that the Applicant was unvaccinated.

• [89] I am satisfied that the Respondent's dismissal of the Applicant was not unfair. The Application is dismissed.

[2] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].

[3] Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 at [31]; Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 at [63].

[4] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]

[5] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at [373]

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

[9] Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 at [31].

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