Fair Work Act 2009

s.394 - Unfair dismissal

Commissioner for Public Employment (Northern Territory)

• [1] Mr Michael Rowe has applied under s 394(1) of the Fair Work Act 2009 (Cth) (FW Act) for an unfair dismissal remedy in respect of the termination of his employment in the Power and Water Corporation (PWC), a Government-owned corporation of the Northern Territory. The Public Sector Employment and Management Act 1993 (NT) (PSEM Act) applies to the PWC.[1] The relevant effect of s 12 of the PSEM Act is that, while he was employed by the PWC, the Commissioner for Public Employment (CPE) was taken to be Mr Rowe's employer. However, it was the Chief Executive Officer (CEO) of the PWC who had the power under the PSEM Act to dismiss Mr Rowe (relevantly, under s 46(1)(c)).

• [2] Mr Rowe's dismissal arose from the introduction of a COVID-19 vaccination mandate for certain classes of employees by the Northern Territory Government. Shortly after the COVID-19 pandemic began to take effect in Australia, on 18 March 2020, the Minister for Health for the Northern Territory issued a "Declaration of Public Health Emergency" (Declaration) pursuant to s 48 of the Public and Environmental Health Act 2011 (NT) (PEH Act). The term of the Declaration has been extended a number of times and, as at the date of this decision, the Declaration has remained in effect continuously since 18 March 2020. The relevant effect of the Declaration is that, while it remains in force, the Chief Health Officer of the Northern Territory (CHO) may, pursuant to s 52(1) of the PEH Act, "take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration". Section 56 of the PEH Act provides that a contravention of a direction made under s 52(1) is an offence (subject to a defence of reasonable excuse) that is subject to a maximum penalty of 400 penalty units ($62,800).

• [3] On 13 October 2021, in exercise of his power under s 52(1) of the PEH Act, the CHO issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions). The CHO Directions remain in force while the Declaration remains in force. Direction 4 of the CHO Directions provides:

(a) a worker who, during the course of work, is likely to come into contact with a vulnerable person;

(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;

(c) a worker whose workplace poses a high risk of infection with COVID-19;

(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.

• [4] Direction 5 of the CHO Directions provides that the provisions of the Schedule to the directions are to be used in determining whether the CHO Directions apply to a worker by virtue of direction 4. Clause 4 of the Schedule provides that, for direction 4(d), "essential infrastructure or essential logistics in the Territory" includes, relevantly, "power generation facilities, electricity networks and electrical installations" and "water supply and distribution infrastructure". Directions 6 and 7 of the CHO Directions provide:

6 For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.

7 On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker's workplace.

• [5] Directions 8 and 9 provide for an exemption from directions 6 and 7 in the case of a worker who has a certificate evidencing a contraindication to all approved COVID-19 vaccines. Direction 10 provides that a person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the worker's workplace contrary to directions 6 and 7. Directions 11 and 12 provide:

11 Nothing in these Directions prevents a worker who is not vaccinated as specified in directions 6 and 7 or exempt from vaccination under direction 8 from working at a place where the worker, during the course of work:

(a) is not likely to come into contact with a vulnerable person; and

(b) is not likely to come into contact with a person or thing that poses a risk of infection with COVID-19; and

(c) is not likely to be exposed to a high risk of infection with COVID- 19.

12 Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7.

• [6] The expression "vulnerable person" used in direction 11(a) is defined in direction 3 as follows:

3 A person is considered to be vulnerable to infection with COVID-19 if:

(b) the person cannot be vaccinated with an approved COVID-19 vaccine due to a contraindication to all approved COVID-19 vaccines; or

(d) the person is at risk of severe illness from COVID-19 for medical reasons, such as being on immune suppressive therapy after an organ transplant or having chronic kidney, heart, liver or lung disease.

• [7] The CHO Directions were subsequently amended by a further direction,[2] but not in any respect relevant to this case.

• [8] The CEO of the PWC, Ms Djuna Pollard, considered that the CHO Directions applied to all PWC employees, including Mr Rowe. On 17 November 2021, Ms Pollard suspended Mr Rowe from his employment because he had not received the first dose of an approved COVID-19 vaccine. By letter dated 6 December 2021, Ms Pollard terminated Mr Rowe's employment effective from that date pursuant to s 46(1)(c) of the PSEM Act on the grounds that:

1. you have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and

2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021;

you are therefore not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.

As you have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(l)(c) of the Act."

• [9] Mr Rowe lodged his unfair dismissal application on 25 December 2021. In his application, he accepted that he had not had a COVID-19 vaccination by the time of his dismissal but nonetheless contended that his dismissal was unfair because he was capable of continuing to perform his job without breaching the CHO Directions. In particular:

• he was able to perform his job at home, as he had been doing during the pandemic, so that there was no need for him to attend the workplace or come into contact with anyone else;

• there had never previously been any emergency circumstances requiring him to come into the office before; and

• he had also requested to take accrued annual leave and long service leave on half-pay from November 2021 until May 2022, but this had been unreasonably refused.

• [10] Mr Rowe initially sought the remedy of reinstatement. However, by the time of the determinative conference before me, he no longer wished to return to employment with PWC and sought the remedy of monetary compensation instead.

• [11] Mr Rowe made a witness statement, which was admitted into evidence, and he was subject to cross-examination. He put into evidence various documents, primarily consisting of correspondence passing between himself and the PWC or the CPE. On Mr Rowe's application, the Commission ordered the attendance at the conference of Mr Skevos Macarounas, Senior Manager ICT Projects and Change in the PWC and Mr Rowe's direct line manager. Mr Rowe adduced evidence from Mr Macarounas at the conference. For the employer, Ms Pollard made a witness statement which appended various documents. Ms Pollard's statement was also admitted into evidence, and she was cross-examined by Mr Rowe. All the witnesses also answered some questions asked by me.

• [12] The primary facts about the circumstances which caused Mr Rowe to be dismissed are not in dispute. The main issue in dispute concerns whether Mr Rowe's employment could reasonably have continued notwithstanding the CHO Directions. The resolution of that issue requires inferences to be drawn concerning the nature and circumstances of Mr Rowe's employment and the proper characterisation of Mr Rowe's position concerning vaccination. As to the former of these matters, I consider that all the witnesses gave credible evidence. As to the latter matter, I have reservations about Mr Rowe's evidence which I will explain in due course.

• [13] Mr Rowe commenced employment in the Northern Territory Public Service, in the Department of Health, in March 2007. In October 2014 he was successful in obtaining the position of Records and Information Manager at the PWC. The role placed him in charge of the PWC's Records Management Unit (RMU). The job description for the position identified its key responsibilities as follows:

"1. Carry out duties in accordance with Power and Water's safety, environmental and quality policy, safety principles, corporate values and strategies.

2. Effectively manage the resources of the Records Management Unit to ensure records management strategies, policies and procedures are aligned to business unit and organisational plans, goals and objectives.

3. Ongoing development, review and implementation of Records Management policies, procedures and other key documents in order to meet requirements under the current Records Management framework.

4. Implement continuous quality improvement initiatives to ensure best practice records management is followed across the organisation, including the ongoing maintenance and review of the Business Classification Scheme (BCS) and functional records retention and disposal schedules.

5. Work collaboratively with both internal and external stakeholders to implement records management projects and initiatives.

6. Ensure PWC meets its legislative requirements around information and records management, including the NT Information Act and NTG Records Management Standards.

7. Oversee and manage the organisation's records retention and disposal program."

• [14] It was not in dispute that Mr Rowe's position to a significant extent involved the use of a computer and telephone communication with clients, meaning that to a substantial degree it could be performed at home. Mr Rowe's evidence, which was not disputed, was that he had performed his job at home during a period of about three weeks when there was a lockdown followed by a requirement to wear a mask at work (Mr Rowe had obtained a mask exemption from his doctor). However, Mr Macarounas' evidence was that during the lockdown period, only highest priority duties were performed, and some office-based tasks were not performed at that time because contact with other people was not permitted. Mr Rowe had also negotiated an arrangement from about 2020 whereby he worked shorter hours on Mondays and Fridays, and generally worked these days at home. Mr Macarounas said he had generally supported Mr Rowe's requests to work at home, but "on the understanding that you could come in at the drop of a hat".[3]

• [15] The witnesses generally agreed that some duties normally performed by Mr Rowe required his attendance at PWC workplaces. Ms Pollard's evidence was that 2, 5, 6 and 7 of Mr Rowe's key responsibilities above could necessitate his attendance in the workplace. Ms Pollard also said that because Mr Rowe was the manager of a small team, he might from time to time be required to perform tasks which his team otherwise did, such as providing incoming and outgoing mail services to the PWC and the creation and maintenance of both hardcopy and electronic files, which might involve attendance at other PWC worksites across the Northern Territory. She also said that Mr Rowe's primary responsibility was to manage team members, and whilst remote working arrangements could be facilitated on a short-term basis, attendance in the workplace was considered essential to manage and provide support to the team on an ongoing basis. Ms Pollard identified an example of Mr Rowe being required to attend a workplace as when she encountered him physically packing up old records at a PWC workplace in Katherine in preparation for transport to a storage facility.

• [16] Mr Rowe accepted in his oral evidence that his job would require him to attend a PWC workplace from time to time: for example, he would have to physically appraise files once a month or every few months; trips to outlying workplaces were very occasionally required; he would sometimes have face-to-face meetings to give advice and work through work records management issues; and he would sometimes have to be directly involved in giving advice about the physical records which PWC personnel had in their offices. He said that "obviously I'd want to be in there from time to time", but this was necessary to a much lesser extent than in "the old days".[4]

• [17] Ms Pollard also gave evidence that, as the key agency in the Northern Territory's disaster response capacity in relation to public utilities, PWC had in place an ICT Cyclone Preparedness & Response Plan, and an overarching Emergency Operations Plan & Standard Operating Procedures. She said that, as part of the former, Mr Rowe was required to provide onsite support, along with other members of his team, which may have involved the securing of physical files and records where required. Under the latter, Mr Rowe along with all employees of PWC might be required to be recalled to work in response to an incident such as a cyclone for the purpose of performing normal duties or such other duties as directed or required as part of PWC's emergency response or recovery duties. Mr Rowe's own duties in such a context might include him attending the workplace to physically secure files and records. Such other duties might include support functions as required to operational employees tasked with the restoration of essential services, such as the provision of food supplies. She described the circumstances of a cyclone in March 2018 as follows:

"I was the executive general manager of our power services business unit, and certainly during Tropical Cyclone Marcus and our response to that, it was an extended, prolonged response lasting for probably, in its entirety, close to a month by the time we had all customers' power restored. We certainly had to call on other non‑field‑based and administrative office‑based functions to provide support functions to allow us to restore power to Territorians, and that took many forms, as I mentioned earlier: collection/delivery arrangements of, you know, lunch packs, food packs for crews who were working out in the field; making sure that they had sufficient protective clothing to do what they needed to do. That all gets done by support functions, and we make sure that part of our rostering arrangements and planning arrangements for severe weather season in particular takes into consideration, you know, those arrangements. and those risks as well."[5]

• [18] Mr Macarounas also gave evidence that Mr Rowe might be required to come into the workplace to provide records retrieval support in the recovery period after a cyclone.

• [19] Mr Rowe did not dispute this aspect of his role, but made two points in his evidence. The first, which was uncontroversial, was that he had never been called into work out of hours to deal with any emergency or disaster response since he started in his position in 2014. The second was that he understood that employees with parental responsibilities would not be called into work in an emergency situation. Mr Rowe said that he had two school-aged children, but he did not give any detail as to the extent to or circumstances in which he might solely be responsible for them. Ms Pollard's evidence was that while an employee's caring responsibilities would be considered in the context of an emergency situation, there remained a potential that emergency response and/or recovery duties would need to be shared with all employees within PWC and not just those without caring responsibilities, and employees with parental responsibilities might be required to make alternate arrangements.

• [20] The RMU is located at PWC's Ben Hammond complex in Darwin. It is located in a separate area of a large building which contains some 80-100 people. The entire complex has about 300 employees. Mr Rowe accepted that it was possible to come into contact with employees outside the RMU when attending the office, but disagreed that it was likely.

• [21] There is no evidence of any issue having arisen concerning Mr Rowe's employment capacity, conduct or performance prior to the issue of the CHO Directions. Mr Macarounas described Mr Rowe as "one of the most... knowledgeable information managers in the Northern Territory" and said he "r[a]n a tight ship".[6]

• [22] On 13 October 2021, as earlier stated, the CHO Directions were made. The same day, the Chief Executive Officer of the Department of the Chief Minister and Cabinet of the Northern Territory Government sent an email to all Northern Territory public sector employees advising of the CHO Directions. The email stated, among other things, that "The CHO Direction[s] will affect many public servants and your Chief Executive will provide more details pertaining to your specific circumstances".

• [23] At the time this occurred, Mr Rowe had already obtained approval from Mr Macarounas to take annual (or recreation) leave from 15 November 2021 until 31 December 2021.

• [24] On 22 October 2021 the CPE, Ms Vicki Telfer, sent an email to all public sector employees concerning the CHO Directions. Among other things, her email said:

"How does the CHO direction affect you as a NT public servant?

Over the last week considerable thought has been put into implementation of the CHO Direction. It has become clear that given the nature of our workforce and our customers most, if not all, of our Northern Territory Public Services employees and contractors will need to be vaccinated to attend our workplaces (unless they have an exemption).

Your Chief Executive Officers (CEOs) are responsible for implementing the CHO Direction and will shortly advise you of their requirements for your agency."

• [25] The same day, Ms Pollard sent an email to all PWC employees concerning the CHO Directions. Ms Pollard's email began by referring to Ms Telfer's email as follows:

"This morning you will have received information from Vicki Telfer, the Northern Territory Commissioner for Public Employment, on the requirement for all Public Sector workers to provide evidence of their vaccination status prior to 5 November 2021."

• [26] The email went on to identify the means by which employees were to record their vaccination status (on the myHR system) or to prove that they had a medical exemption.

• [27] As earlier stated, Ms Pollard had formed the view that the CHO Directions applied to all PWC employees (including Mr Rowe), and her email was founded on this view. In her oral evidence, she explained the basis for this view as follows:

"... I am familiar with the Chief Health Officer Direction 55 and subsequently amended by CHO Direction 81, and very much it was deemed that all Power and Water employees, or PWC employees would fit into the fourth category where we are all deemed to be essential services workers in that context. It is - you know, everybody is just required to be, you know, in their roles to support what we do on a day‑to‑day basis in terms of delivering essential services right across the business, and those support functions are equally as key to, you know, the field‑based services that are required to provide those functions, as I said earlier, you know, safely, reliably and efficiently."[7]

Mr Rowe resists being vaccinated by the CHO Directions deadline

• [28] On 27 or 28 October 2021, Mr Rowe had a face-to-face meeting with Mr Macarounas to discuss taking leave. His evidence was that he told Mr Macarounas that he was concerned about receiving the vaccine and that he need time away from the office. Mr Rowe described himself at this time as feeling "burnt out, overwhelmed and need[ing] time away from the office to decide on what was the best option for myself and my family". Mr Rowe and Mr Macarounas jointly examined Mr Rowe's HR records and agreed that he had enough accrued leave to take six months' leave from 15 November 2021 until about the middle of May 2022. Mr Rowe's evidence was that Mr Macarounas "fully supported me taking leave during this difficult time", but that he said that he needed to talk to HR as he was not sure what the new rules were around unvaccinated employees taking leave. Mr Macarounas' evidence about this was more nuanced. He agreed that, from an operational perspective, he was prepared to approve such leave, but there would have needed to be an understanding between himself and Mr Rowe as to how the work requirements of the RMU would have been met during this period of extended leave. Mr Macarounas said this may have involved Mr Rowe having to come into the workplace from time to time if other staff were absent, and considered in retrospect that, had the leave been taken, he would have had to have called Mr Rowe in because of other staff leaving the RMU. He also confirmed that, in light of the CHO Directions, he was not sure at the time whether leave would be approved for unvaccinated employees.

• [29] Mr Rowe gave evidence that, on 29 October 2021, he attended a monthly ICT meeting at which Mr David Bowen, the PWC's Executive General Manager, ICT, advised that no leave would be approved for unvaccinated employees. Later that day, Mr Rowe had a meeting with Mr Bowen, at which Mr Rowe advised that he was "nervous about receiving either the mRNA (Pfizer/Moderna/DNA(AZ)) vaccines and that as they were still under clinical evaluation (and by definition still in an experimental phase)" and that he wanted to be able to take extended leave so he could consider it further. Mr Rowe said that he made it clear that he would be "much more willing to receive a traditional style vaccine such as Novavax and that I'd like the opportunity to be able to wait for that." Mr Bowen said there might be the possibility of a short-term arrangement but there were no guarantees, and according to Mr Rowe, "asked if I was willing to lose my employment/career over not taking the vaccines and went on to try and compare my nervousness of taking a provisionally approved vaccine with wearing car seatbelts, which made me quite frustrated." Mr Rowe said he could not commit to receiving the vaccines at that stage, and they agreed to follow up on the matter the following week.

• [30] On Monday, 1 November 2021, Mr Rowe sent a lengthy email to Mr Bowen in which he referred to the conversation they had had the preceding Friday (29 October) about his "concerns during this very difficult and stressful time". Mr Rowe expressed his pride in his employment, and said that he had received all the vaccines he was recommended to have throughout his life, as had his children. However, he stated in the email that he had a genuine belief that the currently-available COVID-19 vaccines (Pfizer, AstraZeneca and Moderna) posed a "small but potential[ly] serious risk to my life" and gave some hyperlinks to data about adverse reactions to these vaccines. He also referred to two UK reports which he asserted "show that the vast majority of total deaths are in those that are fully vaccinated" and referred to alleged side effects such as myocarditis, thrombosis, Guillain-Barre syndrome and the potential for Antibody-Dependent Enhancement (ADE). He then said:

"At the end of the day I genuinely believe from the available data that there is a risk (no matter how small it may be) of a serious adverse reaction or even death if I take one of the currently available vaccines. In order to ensure the integrity of my mental health during this difficult time (Note, I am currently seeking support through the Employee Assistance Program), I'm requesting that you allow me to take recreation and long service leave (at half pay - until May 2022). This will allow me to get away from the workplace to clear my mind and evaluate the Novavax vaccine, which is due to be available over the coming months. If the safety data is as expected (ie no confirmed reports of serious adverse events eg permanent disability or death), I will have no reason to not have the required dosage prior to recommencing with Power and Water at the end of my leave. This was the approach I discussed with Skev (and he supports) prior to your advice at the ICT Monthly Team Meeting that recreation and/or long service leave would not be granted to unvaccinated staff.

I'm aware as an employee of an essential service provider, I can be called in even whilst on leave (unless I'm not physically capable of attending ie not in the NT). Since 2014 I have not been required to physically be on-site during any of my leave periods. Other RMU staff have been able to perform these duties while I work remotely on system/technical issues ie access to records/CM. If you find it a 'reasonable accommodation' to allow me to take my RL and LSL at half pay until May 2022, I will make myself available during this time via VPN to assist in an ICT capacity during an emergency. I'm confident that vaccinated RMU staff members will be able to physically attend the workplace as required.

Please let me know at your earliest convenience of how you would like to progress. If my request can be accommodated, I will ensure I complete the RAF for a very capable replacement during my leave period. If not, we may need to involve other parties and go through more formal mediation, which is not something I look forward to.

As someone who has put in plenty of blood, sweat and tears into Power and Water since 2014, I hope my request to take time away from the workplace to consider all of my options during this highly stressful time can be accommodated. I need this time to clear my mind and make the best possible decision for myself and my family."

• [31] Mr Bowen sent a lengthy reply to Mr Rowe's email later that day. He responded comprehensively to the information which Mr Rowe had provided concerning alleged vaccination risks. This included a detailed explanation of the difference between correlation and causation in analysing the data concerning reported adverse reactions to vaccination, an identification of data which showed that unvaccinated persons were dying of COVID-19 at five or more times the rate of unvaccinated persons, and information that there had never been a single recorded case of ADE in relation to any coronavirus vaccine. His email concluded by saying that "I suggest that we put aside the stats and the proofs and the tables; and we chat tomorrow about your circumstances, and what we can do".

• [32] Mr Rowe did not find Mr Bowen's response persuasive. He said he was "surprised" that Mr Bowen should give a response of this nature "from a non-medical background", and that "I didn't agree with much of what he wrote but there was no point arguing".[8] It may be interpolated at this point that Mr Rowe said he also sought advice about being vaccinated from his doctor and an EAP provider but "my opinion at this time had not changed" as a result of the advice he was given.[9]

• [33] On the same day (1 November 2021), the Northern Territory Government disseminated to all its employees (including Mr Rowe) a document entitled "Mandatory COVID-19 vaccinations for workers - Frequently Asked Employment Questions" (FAQ document). The stated purpose of the FAQ document was to "provide useful information to guide NT Public Sector managers and staff with employment arrangements in response to the CHO Directions". The FAQ document relevantly included the following questions and answers:

"9. Can I work from home if I have not received a first dose by the required time?

If an employee has not had their first vaccination by close of business 12 November, they will be unable to return to any workplace covered by the CHO Directions on and after 13 November, until they are vaccinated. This does not apply to employees who have provided evidence of a medical exemption in line with the CHO Directions.

Alternative workplace arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval, as an interim measure.

As normal, employees can request agency delegate consideration to work from home.

13. If I refuse to be vaccinated, can I take a long period of leave?

Alternative arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval.

Employees can apply for leave as part of normal leave request arrangements which will be considered in the context of an agency's operational requirements, however these arrangements may not be feasible.

16. I am returning from leave, is there anything I need to do before returning to work?

You will be required to share your vaccination status and show evidence of this with your agency delegate before returning to work.

You are encouraged to communicate with your manager and provide your preferred contact details in order to receive relevant agency communications about the mandatory vaccination for workers."

• [34] On 2 November 2021, Ms Pollard sent a further email to all PWC staff. The email emphasised that compliance with the CHO Directions was a legal requirement, and relevantly stated:

"All Power and Water employees and contractors are essential workers and must be vaccinated. In line with the [CHO Directions], we are a provider of essential infrastructure, which means all of us contribute to the operation and maintenance of essential infrastructure.

To ensure that you can continue to work you must have your first dose of the COVID-19 vaccine by 12 November 2021 and two doses by 24 December 2021.

I understand that not everyone may be able to be vaccinated. The CHO Direction allows an exemption in the event that a person has a proven contraindication to all available COVID-19 vaccines. The CHO Direction does not provide an exemption for someone who is able to get vaccinated and chooses not to.

As essential workers who may be recalled from leave to respond to emergency or other events, this requirement includes all employees who are currently, or will be on leave. Taking leave to avoid vaccination is not an option.

Working from home arrangements, including VPN access, will not be approved for the purpose of avoiding compliance with the CHO direction.

Failure to vaccinate or disclose vaccination status will be a breach of your obligation to comply with a lawful and reasonable direction of me as your CEO, and it will also be in breach of the CHO Directions.

A breach of your obligations as an employee ... may result in suspension from employment and a disciplinary or inability process under the Public Sector Employment and Management Act 1993 that could lead to termination of employment."

• [35] Shortly after receiving this email, Mr Rowe had another meeting with Mr Bowen. At this meeting, Mr Rowe advised that he was not in the right frame of mind to be making a decision concerning vaccination, and reiterated his request to take leave at half pay until May 2022. Mr Bowen said that this was not an option, and that Mr Rowe would either have to receive the vaccine or face potential action including termination. In response, Mr Rowe said he wanted to continue to work with PWC but needed more time before committing to being vaccinated, and needed to work through a number of issues.

• [36] A further email sent to employees on 4 November 2021 advised that a failure by an employee to record their vaccination status would mean that the employee's access to PWC workplaces would be removed from Saturday 13 November 2021.

• [37] On 5 November 2021, Mr Rowe sent a lengthy email entitled "Grievance - Mandatory Vaccination" to Ms Pollard. Mr Rowe began by this email by outlining his enjoyment and pride in working for PWC, and then sought to emphasise that he was not "lodging this grievance as 'anti-science', 'anti-vax' or 'anti-government'", that he had always been known as a "practical, rational and critical thinking person", and that he had received all recommended vaccines throughout his life, as had his children. His email included the following:

"The foundation of this grievance is that you are not allowing me to take my pre-approved leave until 31/12/2021. I require this time to work through the significant mental health challenges I'm having which is not allowing me to give informed consent to the current available vaccines (Pfizer, Moderna and AstraZeneca). It's not disputed that there are risks of serious adverse reactions by taking these mRNA/viral vector DNA vaccines, including permanent disability and death. This is clearly evident on multiple government sites such [as] the Australian Therapeutic Goods Administration (TGA) (currently 76,587 adverse reactions, which include Thrombosis with Thrombocytopenia Syndrome and Myocarditis as well as 642 reported deaths - 9 confirmed) and US Centres for Disease Control (CDC) (837,595 adverse reactions and 17,619 reported deaths, as of 22/10/2021).

Preferred Outcome: Although I believe allowing me to take my approved leave would be sufficient to work through my genuine held concerns, my preference(as previously agreed with my Senior Manager Skevos Macarounas, prior to your latest advice) is to use my accrued leave and have 6 months off to allow me to safely take the Novavax vaccine, which would be available over the coming months. This vaccine has a 'traditional style' delivery system and has long term safety data and efficacy, as compared with this new mRNA/DNA technology. To enable this to occur, I advised both Skevos and David Bowen that I would:

• Organise the backfilling of my role by a highly capable and skilled records management professional to ensure minimal impact to the business
• Be available to work in any ICT capacity via VPN during my leave, if required
• Make myself available to provide expert advice to the RMU team on information management and system issues

• The likelihood of me being required to attend the workplace in the event of an emergency is virtually zero:

• RMU have 3 fully vaccinated staff to be 'called in'
• My role is IT based and I have worked consistently from home this year with no issues
• Since 2014 I have never been recalled from leave including while on extended periods of long service leave, over the wet season
• Power and Water have a large cohort of vaccinated employees to provide onsite support following an emergency - it doesn't require me."

• [38] Mr Rowe did not receive any immediate response to his grievance email. He gave evidence that on 10 November 2021, he had a meeting with Mr Colin Edwards and Karen Andrews of the PWC's HR Department. They discussed Mr Rowe taking his pre-approved leave for the period 15 November - 31 December 2021, which Mr Rowe said he wanted to take to decide on what was the best course of action for himself and his family without the pressure of work. Mr Edwards confirmed that Mr Rowe was an essential worker who could be recalled into the office at any time and said that, although this would be a very rare situation, there were requirements under PWC's emergency and cyclone plans to recall employees from leave, including employees whose roles were typically office-based. Mr Rowe appears to have taken from this meeting that he would be allowed to take his pre-approved leave in order to work through his concerns and decide whether he would be vaccinated in order to keep his job, without first having to be vaccinated. However, he was disabused of this notion when, the following day (11 November 2021), Mr Macarounas hand-delivered him a letter signed by Mr Bowen which stated that, while Mr Rowe could take his pre-approved leave, he was still required to comply with the CHO Directions. The letter stated:

"In accordance with CHO Directions No.55 and my duty of care, as an Executive General Manager, to all workers and other persons entering the Corporation's workplaces, I again direct you to enter your COVID-19 vaccination status into myHR and to provide your manager with the required verification.

If you fail to enter and verify that information by 12 November 2021 you will be directed not to attend your workplace and you will be stood down from your duties until such time as your vaccination status is entered and verified, or I decided to take action in relation to your employment under the Public Sector Employment and Management Act 1993."

• [39] Having received this letter, Mr Rowe sent an email to Ms Edwards and Ms Andrews in which he contended that Mr Bowen's letter was not consistent with his discussion with them and, relevantly, stated that he saw no reason to take his leave if he could not consider his position concerning vaccination and would accordingly cancel it. Mr Rowe advised that he would make himself available to discharge his duties from home.

• [40] The same day, 12 November 2021, Ms Pollard sent Mr Rowe a letter which noted that he had still not entered his vaccination information into myHR or provided evidence of vaccination to his manager, and directed Mr Rowe not to attend his workplace after midnight that day until further notice. The letter informed Mr Rowe that he would continue to be paid until he provided proof of vaccination or a formal process to manage his employment under Part 7 of the PSEM Act was initiated by Ms Pollard.

• [41] On 13 November 2021, Mr Rowe sent Mr Macarounas an email enquiring whether he could work from home as a "reasonable accommodation" under directions 11 or 12 of the CHO Directions. Mr Macarounas responded the following day that he would seek clarification about this. However, later the same day, (14 November 2021), Mr Macarounas forwarded by email a letter from Ms Pollard to Mr Rowe. In this letter, Ms Pollard referred to the CHO Directions and the previous communications to employees concerning these directions, and noted that Mr Rowe had not to that point provided evidence that he had received a first dose of an approved COVID-19 vaccination. Ms Pollard stated that, as a result, she was required by the CHO Directions to ensure that Mr Rowe not attend his workplace and, as he was not able to perform his duties in any reasonably available workplace, she had reasonable grounds to suspect that there was "an inability and performance grounds" in relation to his employment, he was not able to perform the duties assigned to him (s 44(1)(a) of the PSEM Act) or he was not suited to perform the duties assigned to him (s 44(1)(b) of the PSEM Act). Ms Pollard invited Mr Rowe to provide written submissions in response by 19 November 2021. Under the heading "Suspension Pending Investigation", Ms Pollard also said that she that she was "of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision" and foreshadowed suspending him without pay for a period of three months pursuant to s 47(4) of the PSEM Act. She invited him to also provide a submission in response to this opinion by 16 November 2021.

• [42] By letter dated 16 November 2021, Mr Rowe responded to his foreshadowed suspension without pay. Mr Rowe contended, among other things, that he was able to continue to perform the duties of his position:

"To ensure there is no ambiguity, I want to advise you that I can perform my [inherent] duties both effectively and efficiently irrespective of the location I work from (office or home). I have consistently demonstrated my ability to work away from the office during my time at Power and Water, especially over the last 18 months. My work colleagues, peers across the business and my supervisor will attest to this fact."

• [43] He also contended that Ms Pollard had not considered and applied directions 11 and 12 of the CHO Directions.

• [44] On 17 November 2021, Ms Pollard sent a letter to Mr Rowe saying that she had considered his response and advised that "you have not provided any new or relevant information, or significant reasoning, as to why I should alter my intention to suspend you without remuneration". Ms Pollard said that she had decided to suspend him without pay for three months, unless otherwise determined, but that he could access his long service leave or recreation leave whilst on suspension.

• [45] On 18 November 2021, Mr Rowe sought that the CPE review the decision to suspend him without pay pursuant to s 59 of the PSEM Act. On 19 November 2021 the CPE, Ms Telfer, sent a letter to Mr Rowe in which she affirmed the decision to suspend him without pay. Her letter included the following:

"I confirm that this office contacted your agency and discussed the decision to suspend your employment without remuneration.

Your agency confirmed that you have successfully performed the duties of Records and Information Manager periodically from home over the last 18 months but does not agree that you are able to execute all of your responsibilities from home indefinitely.

Your agency has advised that all employees in your agency fall into the category of essential workers which means you may be assigned alternative duties at any time during an emergency that requires you to attend the workplace. This means, that from 12 November 2021, agency employees who have not received their first vaccination no longer meet the inherent requirements of their role.

While I am extremely supportive of flexible work arrangements including the option of working from home, I consider it fair and reasonable that your CEO requires employees, especially those who fall into the category of essential workers, to be able to attend work from time to time, especially in an emergency situation."

• [46] Mr Rowe sent an email to the office of the CPE on 19 November 2021 in which he denied that he had ever requested to work from home "indefinitely", and said he had made it clear that he had only wanted a "an interim arrangement to work through my vaccine hesitancy". The office of the CPE (Ms Rachel Dunn) responded by email the same day, saying that "[t]he Commissioner considers one month's notice to comply with this directive reasonable and sufficient time for employees to 'work through any hesitancy' as you say" and that Mr Rowe was strongly encouraged to speak with a treating medical practitioner about his vaccine concerns as soon as possible.

• [47] On or about 19 November 2021, Mr Rowe sent Ms Pollard a detailed response to her letter of 16 November 2021. In his response, Mr Rowe asked:

"Could it be reasonable for me to be comfortable and confident in taking an available Covid-19 vaccine? Furthermore, would it be reasonable to have a level of hesitancy when over 80,000 adverse reactions, including permanent disability and death have been reported to and published on the Australian TGA website?"

• [48] Mr Rowe reiterated that he was able and suited to perform all of his inherent duties while working from home. He set out his history of working from home, including that he had done so regularly and consistently over the previous 18 months, during all lockdowns and mask mandates (noting that Mr Rowe has obtained a medical mask exemption), and regularly on his "short days" of Monday and Friday. Mr Rowe said that he understood that a permanent working from home arrangement was not reasonable in the current circumstances, but requested "the ability to negotiate an interim arrangement to ensure services the RMU team is responsible for can be delivered in line with best practice standards and legislative requirements". In relation to the "[l]imitations of working from home", Mr Rowe said:

"• Although it could be argued some supervisors need to work in the same location as their staff to be efficient at their job, I have always made myself constantly available whilst working from home for my team. I check with them on regular occasions throughout the day, providing assistance and delegating tasks as required.

• Although correct in that I won't be able to attend the workplace until I get vaccinated, I don't believe this requirement applies to me during this stage of life. That is due to the fact I have a duty of care for my young primary school aged children. There has never been a requirement for a parent of young children to attend the workplace during an emergency. Not only is that totally unreasonable and could be considered unlawful, PWC CEOs have always communicated very clearly that employees with parental duties are not required to attend the workplace during an emergency.
• Since 2014 I have never been (re)called into work at any time to assist with on-site or physical tasks. I have always been willing and encouraged to use my skills and specialties involving the provision of high quality services, conducted via ICT systems remotely.
• We have a large cohort of vaccinated employees who can provide onsite support as required eg preparing food and water.
  • Although I understand this may not appear 'fair', it's the way PWC have always operated eg parents look after their children and remote into systems to assist and those staff that can attend the workplace, do so."

• [49] Ms Pollard responded by way of a letter dated 24 November 2021. She acknowledged Mr Rowe's response of 19 November 2021, and said that after considering all of the information and evidence including this response, she found that (1) the CHO Direction forbade Mr Rowe from attending the workplace; (2) Mr Rowe was unable to be provided with suitable alternate duties in a workplace that was not subject to the CHO Directions; and (3) there were "inability and performance grounds for [his] employment" in that Mr Rowe was unable to perform the inherent duties of his position under s 44(1)(a) of the PSEM Act and was not suited to perform the inherent duties of his position under s 44(1)(b) of the PSEM Act. In relation to (2), Ms Pollard said:

"...all Power and Water employees are essential workers as we are a provider of essential infrastructure, which means all employees contribute to the operation or maintenance of essential infrastructure. As such, all Power and Water employees may be assigned alternative duties and may require attendance in the workplace."

• [50] Ms Pollard went on to say that it was necessary for her to consider what reasonable and appropriate remedial action should be taken. She concluded that, because Mr Rowe had not been vaccinated and refused to do so, none of the options under s 46(1)(a) and (b) of the PSEM Act (including training, reduction in salary, or transfer to alternate duties) would remedy his inability to attend the workplace to perform his duties. Ms Pollard accordingly concluded that the only reasonable and appropriate action available to her was to terminate Mr Rowe's employment under s 46(1)(c) of the PSEM Act. Ms Pollard invited Mr Rowe, before she took remedial action, to submit by 1 December 2021 any reasons why she should not terminate his employment.

• [51] On 26 November 2021, Mr Rowe sent a formal written grievance, made pursuant to s 59(1)(b) of the PSEM Act, to the CPE, Ms Telfer. The identified grievance was the "unreasonable and unfair decision" by Ms Pollard to confirm that the termination of Mr Rowe's employment was the only reasonable and appropriate action available to her. Much of what Mr Rowe stated in this grievance repeated, in substance, what he has stated in his earlier correspondence and grievances. Among other things, Mr Rowe contended that:

• by reason of direction 12 of the CHO Directions, there was no specific legal requirement for him to be vaccinated at that stage;

• he had proven he could perform all of the inherent duties whilst complying with the CHO Directions;

• he had not refused to receive a COVID-19 vaccine, but had asked for more time to ensure he could give informed consent, and he was willing to negotiate terms of any temporary arrangement to ensure he made the best decision for himself and still retain his employment with PWC;

• there was no reasonable situation where he would be required to attend the physical workplace;

• there had been no discussions with him to work through a way to ensure the best possible outcome for all parties concerned; and

• termination was the pre-determined outcome, and the process was "nothing more than 'ticking the box' and a smokescreen to at least show some illusion of following 'due process'."

• [52] On 29 November 2021, Mr Rowe requested by email that Ms Pollard put her intention to terminate his employment on hold to await the findings of the CPE in response to his grievance, and to provide five days for him to respond to the CPE's findings if the CPE affirmed Ms Pollard's intention to terminate him. Ms Pollard responded the same day and refused the request. Mr Rowe then raised this issue with the office of the CPE on 1 December, but his complaint was rejected. Mr Rowe then send a lengthy submission to Ms Pollard setting out his reasons why his employment should not be terminated. Again, the content of this submission was largely repetitive of Mr Rowe's earlier correspondence, grievances and submissions. His submission included the following passage:

"If you had a genuine desire to be reasonable and work through the available options in order to ensure termination was the last possible option, you would have considered (and permitted within reason) options such as:

• Allowing me to take recreation or long service leave in order to give me time to decide if receiving one of these provisionally approved vaccines was in my and my family's best interests (as was my preference in the grievance I lodged to you on 20/10/2021 which I have still not received a response)
• Granting leave without pay for an agreed period of time
• Discuss working from home arrangements as an interim solution. I note Power and Water have a number of employees working from home, including interstate. I was clear in being flexible in regard to amended working hours and duties."

"It is an offence to threaten someone's livelihood and ability to provide for their family due to not receiving a provisionally approved vaccine, especially when there is no absolute lawful requirement to do so. I have informed you of a number of reasonable options available to us but you have chosen not to consider them, which I can only assume is due to the conflicts of interest you have with one or more Parliamentary ministers, including the Chief Minister. It's clear that termination was always going to occur regardless of the evidence I submitted to you or how unreasonable I proved your actions to be."

• [54] On 2 December 2021, the CPE, Ms Telfer, wrote to Mr Rowe to confirm that Mr Rowe's grievance concerning Mr Pollard's refusal to grant him a stay of termination was rejected.

• [55] On 6 December 2021, Mr Pollard wrote to Mr Rowe informing him that his employment was terminated with immediate effect pursuant to s 46(1)(c) of the PSEM Act. In this letter, Ms Pollard essentially repeated previous responses she had given to matters earlier raised by Mr Rowe and, in particular, she emphasised the proposition that all PWC employees were essential workers because PWC was a provider of essential infrastructure and, as such, all PWC employees could be assigned alternative duties and might be required to attend the workplace.

• [56] Since he was dismissed, Mr Rowe has set up a 20-acre farming property at Darwin River, and works most of the week there growing organic fruit, vegetables and poultry. He has not yet earned any money from this venture, but hopes that it will produce an income in the future. He has to this point been living off his savings and separation payment.

• [57] Mr Rowe has not received any COVID-19 vaccine since he was dismissed, notwithstanding that the Novavax vaccine was provisionally approved for use in Australia on 20 January 2022 and became available for use in mid-February 2022. His evidence was that because of the way he was treated by the PWC and the Northern Territory Government, he now has "a completely different perspective on life", and his current lifestyle does not require him to be vaccinated. He said however that if his farming venture does not work out:

"...I will have to get vaccinated and get a real job, a more permanent job, but at this stage I am 100 per cent committed to living an alternative life away from government jobs, because of the way they treated me."[10]

• [58] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Rowe's application may be considered. I deal with each of these in turn below (using the paragraph lettering in the section):

(a) Mr Rowe's application was made within the 21-day period required by s 394(2).

(b) It is not in dispute, and I am in any event satisfied, that Mr Rowe is a person protected from unfair dismissal within the meaning of s 382 in respect of his employment by the PWC. His salary and other remuneration was, in total, below the high income threshold prescribed pursuant to s 333 of the FW Act and, in addition, an enterprise agreement applied to his employment.

(c) The CPE (who is the legal employer of about 22,600 FTE employees) was not at the time of Mr Rowe's dismissal a small business employer within the meaning of s 23 of the FW Act, and thus the Small Business Fair Dismissal Code (Code) was not applicable to the dismissal.

(d) The CPE did not contend, nor is there any basis to conclude, that the dismissal of Mr Rowe was a case of genuine redundancy within the meaning of s 389 of the FW Act.

• [59] Section 385 of the FW Act provides that a person has been unfairly dismissed if:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Code; and

(d) the dismissal was not a case of genuine redundancy.

• [60] It is not in contest, and I find for the purpose of s 385(a), that Mr Rowe was dismissed from his employment in PWC. I have already dealt with s 385(c) and (d): the Code did not apply to Mr Rowe's dismissal, and his dismissal was not a case of genuine redundancy. The issue in contest which it is necessary for me to determine is whether, for the purpose of s 385(b), Mr Rowe's dismissal was harsh, unjust or unreasonable.

• [61] In considering this question, s 387 of the FW Act requires the Commission to take into account a number of matters specified in paragraphs (a) to (h) of the section. I deal with each of these matters in relation to Mr Rowe's application in turn below.

Section 387(a) - Whether there was a valid reason for the dismissal related to the person's capacity or conduct

• [62] The critical question which arises under s 387(a) in this case is whether the CHO Directions rendered Mr Rowe incapable of performing the fundamental responsibilities of his employment such as to found a valid capacity-related reason for his dismissal. It may be noted at the outset that Mr Rowe did not contest that the CHO Directions applied to him. I am satisfied, on the basis of evidence of Ms Pollard, that the CHO Directions did apply to him by virtue of Mr Rowe being, for the purpose of direction 4(d), a "worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory". The PWC provides essential infrastructure in the form of the transmission and distribution of electricity, and water and sewerage services, and Mr Rowe's position was one that was necessary for the PWC's operations.

• [63] Mr Rowe accepted that there was a valid reason for the PWC not to allow him to attend its workplaces, and I am satisfied that this was the case. Because Mr Rowe had not, by 13 November 2021 (or by the date of his dismissal), received the first dose of an approved COVID-19 vaccine, and had not provided any evidence of a contraindication to all approved COVID-19 vaccines, he was forbidden by direction 6 of the CHO Directions from attending his usual workplace or any PWC workplace. Further, the PWC was required by direction 10 to ensure that Mr Rowe did not attend any of its workplaces.

• [64] Notwithstanding this, Mr Rowe contends that there was no valid reason for his dismissal because he could have performed the inherent duties of his position by working at home or, alternatively, he could have continued in employment if a reasonable adjustment had been made to accommodate his circumstances as an unvaccinated worker pursuant to directions 11 and 12 of the CHO Directions.

• [65] Dealing with Mr Rowe's primary contention first, while Mr Rowe may have been able to perform a majority of the duties of his position at home, the evidence does not support the proposition that Mr Rowe could have performed all of his responsibilities without visiting the workplace.

• [66] The evidence of Ms Pollard, Mr Macarounas and Mr Rowe himself described in paragraphs [14]-[16] above makes it clear that Mr Rowe's duties required him to physically attend the RMU office at the Ben Hammond complex, or other PWC offices, from time to time. Further, I am satisfied that there was an overriding responsibility for Mr Rowe to come into work to assist in emergency or disaster response/recovery if required to do so. The evidence did not make good Mr Rowe's assertion that he was permanently exempt from this responsibility by virtue of being a parent of school-aged children with potential child care responsibilities. That this responsibility may only rarely be required, and that Mr Rowe has not been called in to discharge this responsibility in the period of his employment since 2014, does not diminish its significance in the context of a region which is vulnerable to disastrous cyclone events.

• [67] As to Mr Rowe's alternative case, I find, firstly, that he has not adduced sufficient evidence to satisfy me that direction 11 of the CHO Directions applied to him such as to exempt him from the requirements of directions 6 and 7. The evidence given by him concerning the workplace at which the RMU is located, and the workforce there, was very sketchy. It goes no higher than that the RMU is located in a separate area of a building at the Ben Hammond complex which contains 80-100 employees, and that Mr Rowe asserts that while it is possible he might come into contact with persons outside the RMU, it is not likely. I would need much more detailed evidence about the layout of the building, and the Ben Hammond complex, to be able to be satisfied that it was not likely that Mr Rowe's attendance at the RMU office would lead him to come into contact with any of the categories of persons specified in direction 11. I note in this connection that PWC asserted, without contradiction from Mr Rowe, that about 15 percent of employees in the workforce of about 300 across the entire Ben Hammond complex are Aboriginal,[11] and are thus "vulnerable persons" for the purpose of direction 11(a). That fact alone makes it impossible to conclude that direction 11 applied to Mr Rowe. Mr Rowe's evidence did not even touch upon the characteristics of the persons employed within the RMU, with whom he was undoubtedly likely to come into contact if he attended the workplace, such as to permit me to be satisfied that none of them fell within any of the categories of persons specified in direction 11. Mr Rowe referred to a willingness to attend the office if necessary outside of normal working hours, but there is no evidence before me that demonstrates that this would be a practical option, and in any event this could not address those parts of his role which required him to meet with other persons. Further, it is clear from the evidence that Mr Rowe's duties might require him from time to time to attend a range of PWC workplaces, not just the Ben Hammond complex, and that would further make it likely that Mr Rowe would come into contact with persons in one or more of the categories specified in direction 11.

• [68] In relation to direction 12, Mr Rowe submits that there were two alternative "reasonable adjustments" which PWC might have made which would have allowed his employment to continue notwithstanding that he could not enter the workplace: first, to allow him to work at home indefinitely or, second, to take his accrued leave entitlements on half-pay until May 2022. In support of his contention that these adjustments would have been reasonable, Mr Rowe relies upon questions and answers 9 and 13 in the FAQ document (quoted in paragraph [33] above), which contemplate that working from home, or taking leave, may be allowed as interim measures for employees who have not received their first vaccination dose by 12 November 2021.

• [69] Mr Rowe's submission in respect of direction 12 must be rejected primarily because it misapprehends the meaning of direction 12. The direction does not require the employer to make any reasonable adjustments to accommodate an unvaccinated worker; it merely makes it clear that the CHO Directions do not prevent such an accommodation being made in respect of an unvaccinated worker to whom the prohibitions in directions 6 and 7 apply. In the case of Mr Rowe, no accommodation was made. Because he was unvaccinated, directions 6 and 7 prohibited him from attending PWC workplaces, and that meant that he did not have the capacity to perform the full range of the duties of his position.

• [70] In any event, I do not consider that the adjustments sought by Mr Rowe to accommodate his position were reasonable. In respect of him working at home, the evidence of Mr Macarounas - who, it must be recalled, was Mr Rowe's own witness - was that, while he was prepared to support this, it had to be subject to the requirement that Mr Rowe could come in "at the drop of a hat". Further, all the witnesses - including Mr Rowe - gave evidence that the duties of his position required his physical attendance at PWC workplaces from time to time. Mr Rowe never explained how his duties as manager of the RMU could be modified in a way which entirely divested him of these duties. And, finally, Mr Rowe was subject to an overriding requirement to be involved in emergency/disaster response or recovery as required, as earlier discussed. This meant that him working at home from home on any ongoing basis was not "operationally feasible", as contemplated by the FAQ document.

• [71] In respect of Mr Rowe's proposal to take leave on half-pay, similar considerations apply. Mr Macarounas' evidence, as earlier recounted, was that the approval of this from an operational perspective would have to have been subject to an understanding that Mr Rowe, as the manager of a small unit, could be called into the workplace if required. That would not have been possible if he was not vaccinated. And, again, Mr Rowe would still have been subject to the emergency/disaster response requirements of his employment. That, in my view, made the non-approval of his proposal to take such an extended period of leave (totalling six to seven months) not unreasonable (either in a general sense or in relation to s 88(2) of the FW Act).

• [72] Accordingly, I find that the application of the prohibitions in directions 6 and 7 of the CHO Directions to Mr Rowe's employment meant that he did not have the capacity to perform the full range of the duties of his position. This constituted a valid capacity-related reason for his dismissal. This weighs in favour of the dismissal not being harsh, unjust or unreasonable.

Section 387(b) and (c) - Whether the person was notified of that reason and was given an opportunity to respond to any reason related to the capacity or conduct of the person

(1) Mr Rowe was notified of the capacity-related reason for his dismissal in Ms Pollard's letter to him dated 24 November 2021 (referred to in paragraphs [49]-[50] above).

(2) Ms Pollard's letter of 24 November 2021 provided Mr Rowe with an opportunity to respond by 1 December 2021, and Mr Rowe took advantage of this opportunity by sending Mr Pollard a lengthy submission in response on 1 December 2021.

• [74] Mr Rowe submits, in relation to s 387(c), that his submissions and personal circumstances were not considered and that the responses he received from Ms Pollard were "lacking the consideration necessary for a matter as severe as a dismissal". However, s 387(c) is not concerned with the extent of consideration given in respect of any response provided to the reasons for dismissal, but rather only with whether there was an opportunity to respond. In any event, I am satisfied that, on the face of her various items of correspondence, Ms Pollard gave consideration to the principal issues raised by Mr Rowe.

• [75] PWC (and, indirectly, the CPE) complied with the procedural fairness requirements embodied in s 387(b) and (c). This weighs in favour of the dismissal not being harsh, unjust or unreasonable.

Section 387(d) - Whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

• [76] There were no discussions as such between Ms Pollard (the decision-maker) and Mr Rowe relating to the dismissal, so the issue of a support person does not arise. This matter is therefore not relevant to my consideration.

Section 387(e) - If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

• [77] The dismissal did not relate to any unsatisfactory performance on the part of Mr Rowe. This matter is therefore not relevant to my consideration.

Section 387(f) and (g) - The degree to which the size of the employer's enterprise or the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

• [78] This case involves a large employer with dedicated human resource management specialists. The procedures adopted in effecting the dismissal were of a standard appropriate for such an employer. This is a neutral consideration.

Section 387(h) - Any other matters that the Commission considers relevant

• [79] There are two additional matters which I consider to be relevant to this case: first, the imposition of a requirement that Mr Rowe receive his first dose of vaccination by Saturday 13 November 2021 notwithstanding that he had pre-approved annual leave for the period 15 November 2021 (the following Monday) until 31 December 2021 and, second, the dismissal of Mr Rowe effective from 6 December 2021 notwithstanding that he had already been suspended for three months without pay effective from 17 November 2021 (which would otherwise have lasted until 17 February 2022).

• [80] In respect of the first matter, I consider it was unfair in a general sense to impose a vaccination requirement upon Mr Rowe in circumstances where his pre-approved leave would not have required him, in all probability, to attend the workplace. It is true that Mr Rowe retained his overall responsibility to attend for work in some fashion if required to do so in response to an emergency or disaster, but the prospect of this occurring in a limited six-week period, in circumstances where it had never occurred before in a period of over seven years, was vanishingly small. A more realistic and flexible approach was called for. It would not have involved any contravention of the CHO Orders for the PWC not to require Mr Rowe to be vaccinated prior to him returning for work after the end of his leave period. Questions and answers 9, 13 and 16 of the FAQ document specifically contemplated that a person could proceed to go on approved leave even if not vaccinated, in which case they would not be required to show proof of vaccination until immediately before returning to work at the end of the leave period. The FAQ document was intended to guide managers in their implementation of the CHO directions, but it was in my view not followed in a practical fashion by Ms Pollard. The requirement to vaccinate in advance caused Mr Rowe to cancel his pre-approved annual leave.

• [81] As to the second matter, it might be said that, having suspended Mr Rowe without pay for a period of three months in response to his failure to comply with the CHO Directions, there was no need or purpose to dismiss him prior to the expiration of the period of suspension.

• [82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.

• [83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.

• [84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary. All the evidence suggests to me that he had made up his mind on the topic by late October 2021 (if not earlier), and Mr Rowe never identified anything which might reasonably cause him to change his position. The following matters are salient in this respect:

(1) At his meeting with Mr Bowen on 29 October 2021, Mr Rowe (on his own evidence) asserted that the approved vaccines were "still in an experimental phase". That was untrue, but indicates that Mr Rowe had already formed strong views.

(2) In his lengthy email to Mr Bowen of 1 November 2021, Mr Rowe advanced a well-developed, albeit unsound, case concerning both the purported risks and the lack of efficacy of vaccination. I infer from this that Mr Rowe had "done his research" and was strongly committed to the view he was advancing.

(3) Mr Bowen's detailed refutation of Mr Rowe's case in his reply email of 1 November 2021 had no effect on Mr Rowe. As earlier recounted, Mr Rowe simply said in his evidence that he did not agree with much of what Mr Bowen had said, was surprised that Mr Bowen had even sent a response of this nature, and saw no point in arguing about it.

(4) Mr Rowe sought advice from his doctor and an EAP provider about his vaccination concerns, but they did not change his opinion.

(5) Mr Rowe sent another detailed email concerning the alleged risks of vaccination to Ms Pollard on 5 November 2021. This email misrepresented statistics on adverse reactions to vaccines published by the Australian Therapeutic Goods Administration and the US Centre for Disease Control. For example, Mr Rowe referred to 642 "reported deaths" in Australia and 17,619 "reported deaths" in the US, but the numbers referred to are any deaths following vaccination, not deaths caused by vaccination. As Mr Bowen had said in his email to Mr Rowe of 1 November 2021, this involved a confusion between correlation and causation, but it is clear to me that Mr Rowe was committed to a position concerning the risks of COVID-19 vaccination notwithstanding his protestations otherwise.

(6) Similar assertions said to be based on published statistics were made in Mr Rowe's letter to Ms Pollard of 19 November 2021.

(7) Despite his assertions that he was much more willing to take the Novavax vaccine on the basis that it was a traditional vaccine and was not likely to have any adverse effects, he did not take this vaccine when it became available and remains unvaccinated.

• [85] Accordingly, the two matters I have identified as relevant do not cause me to conclude that the dismissal was harsh, nor do they weigh in favour of such a conclusion. I do not consider, in light of the known facts, that Mr Rowe's evidence that he might have been prepared to reconsider the question of vaccination had he taken his leave or remained on suspension without pay is credible, and I do not accept it.

• [86] Mr Rowe raised as a potentially relevant consideration under s 387(h) that his dismissal was politically motivated and predetermined, in that Ms Pollard had simply acted as directed by the then Chief Minister of the Northern Territory. No probative evidence supports Mr Rowe's contention in this regard, and I reject it.

• [87] Finally, it is relevant to the question of harshness that Mr Rowe has clearly suffered economic loss as a result of his dismissal. However, this is not a matter to which I can assign any weight in Mr Rowe's favour. Mr Rowe's dismissal was a direct result of his own considered choice not to be vaccinated by the deadline imposed by the CHO Directions, notwithstanding that he was clearly aware of what the consequence of this choice was going to be. In those circumstances, I do not consider that the responsibility for Mr Rowe's economic loss can be visited upon PWC or the CPE, which were compelled to act within the legal and practical constraints externally imposed by the CHO Directions.

• [88] I have concluded that there was a valid reason for Mr Rowe's dismissal and that he was afforded procedural fairness. No other prescribed or relevant matter weighs in favour of a conclusion that Mr Rowe's dismissal was harsh, unjust or unreasonable. I find that his dismissal was not harsh, unjust or unreasonable Accordingly, the criterion for an unfair dismissal in s 385(b) of the FW Act is not satisfied.

• [89] Mr Rowe was not unfairly dismissed. His application for an unfair dismissal remedy is therefore dismissed.

[1] Power and Water Corporation Act 1987 (NT), s 7(2)

[3] Transcript 25 May 2022, PN 301

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