Sabri v Health Secretary in respect of South Western Sydney Local Health District

Background

1. The following uncontroversial facts fall from the evidence adduced during the hearing.
2. The applicant commenced employment with the respondent at BLH on 23 April 2007 as a Registered Nurse ("RN") at BLH.
3. His substantive position at the time of the Dismissal, was that of RN working in the Intensive Care/High Dependency Unit (ICU) of BLH.
4. From 12 July 2021 until he was stood down on 30 September 2021, the applicant was seconded to the role of Patient Flow Manager in the Demand Management Unit (DMU) at BLH.
5. As an employee of the respondent, the applicant was subject to the COVID-19 requirements under the following instruments: 1. Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PH Order 1)- which came into force on 26 August 2021; and 2. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (PH Order 2)­which replaced PH Order 1 and came into force on 22 October 2021; and 3. The Health Secretary's Determination No 33 of 2021 (the "Determination") made under s 116A of the Health Services Act 1997 (NSW) (the "HS Act") which was made on 12 November 2021.
6. PH Orders 1 and 2 prohibited the applicant from performing work unless he had at least 1 dose of a COVID-19 vaccine by 30 September 2021; or at least 2 doses of a COVID-19 vaccine by 30 November 2021, or had an approved medical contraindication exemption from receiving the vaccine (the "Vaccination Requirement").
7. The Determination made the Vaccination Requirement a condition of employment for all existing and new employees.
8. The Respondent had informed the applicant of the Vaccination Requirements in a number of discussions with the applicant in the period of mid-August 2021 up until 30 September 2021.
9. On 1 October 2021, the respondent wrote to the applicant informing him that as he was not compliant with the Vaccination Requirements, he was placed to be on unpaid leave from 30 September 2021. The applicant was also given an opportunity to show cause why his employment should not be terminated within 14 days because he did not meet the Vaccination Requirements of PH Order 1.
10. The applicant wrote in reply to the 1 October 2021 show cause letter on both 14 and 18 October 2021, in which he made a request for the respondent to provide him with the Material Safety Data Sheet for the COVID-19 vaccines.
11. Following the making of the Determination and PH Order 2, the respondent provided the applicant with a second show cause letter on 18 November 2021. This letter provided the applicant an opportunity to provide a reason why his employment should not be terminated for failure to comply with Vaccination Requirements and referred to the Determination and PH Order 2.
12. On 25 November 2021, the applicant provided the respondent with a response to the second show cause letter following this he was informed of the Dismissal, in correspondence from the respondent dated 19 December 2021.

Approach

1. The guiding consideration in relation to an application made pursuant to s 84 of the IR Act, is for the Commission to determine whether the dismissal was harsh, unreasonable, or unjust (Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117).
2. It is the applicant who bears the onus to prove whether the dismissal was harsh, unreasonable or unjust (Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273).
3. The leading authority as to what constitutes harsh, unreasonable or unjust is in the following passage from the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
4. Section 98 of the IR Act sets out a number of matters which the Commission may have regard to in determining an unfair dismissal application. It is unnecessary to set out this provision here.

The Applicant's Case

1. The applicant advanced four grounds upon which the Dismissal was harsh, unreasonable or unjust.
2. The first ground advanced by the applicant, was that he had pre-approved annual leave. He alleged that the respondent through Ms Linda Campbell (now Linda Heckenburg) the Director of Midwifery/Nursing ("DON"), had made a statement that the respondent would honour such pre-approved annual leave in relation to unvaccinated staff.
3. The second ground advanced by the applicant, was to the effect that the respondent had failed to consider the matters raised by the applicant in his response to the show cause letter of 25 November 2022. In particular, the applicant submitted that this is evidenced by the absence of any specific response in the letter of termination of the matters raised by the applicant.
4. The third ground raised, was that the Determination was not properly made for the purposes of s 116A of the HS Act on the basis that the conditions of employment of the applicant were already fixed by another law, being the IR Act through the provisions of the Public Health System Nurses' and Midwives' (State) Award 2019 (the "Award").
5. The final ground raised, was that the Determination was unlawful and of no effect in that it constituted a contravention of the no extra claims clause of the Award.

Ground 1

1. The applicant's evidence in relation to the undertaking provided by Ms Linda Campbell is as follows: Please also note that the Director of Nursing Ms Linda Campbell indicated in the bed meetings when asked by Nurse Unit Managers in regards to annual leave for unvaccinated staff that if there was an agreement with staff already in place that it should be honoured.
2. As to the pre-approval of leave, the applicant's evidence was that his Nursing Manager, Ms Mariamma Varghese had a meeting prior to the Vaccination Requirements taking effect to discuss the way to deal with the applicant's excessive annual leave balance. The applicant gave the following evidence concerning the alleged manner in which the applicant and Ms Varghese agreed as to how the excess leave would be dealt with: We agreed that I would take my excessive leave after the end of my secondment which was 10th October 2021 and if I was extended that I would cash out my excessive leave.
3. It was alleged by the applicant during the hearing that the above proposal to deal with the excessive annual leave balance was put into a plan and submitted to the NUM for approval but he was not aware whether the NUM had approved the proposal.
4. Firstly, apart from the assertion made by the applicant which he never put to the maker of the alleged statement in cross examination, Ms Linda Heckenburg (nee Campbell), there is no evidence that the undertaking was given on behalf of the respondent and furthermore it is doubtful that she had the authority to do so.
5. Even if there was an undertaking that unvaccinated staff with pre-approved leave should have this honoured prior to any dismissal for failure to meet Vaccination Requirements, there is nothing before the Commission to support a finding that the applicant had such pre-approved leave.
6. Given the above, the applicant has failed to make out this ground.

Ground 2

1. Prior to the applicant's employment being terminated, a brief was prepared for Ms Amanda Larkin, Chief Executive of the respondent regarding the termination or otherwise of the applicant's employment.
2. A copy of the brief was in evidence, which stated that a number of documents were attached to the briefing, including the applicant's response of 25 November 2021.
3. The letter of termination of 19 December 2021 stated that the applicant's responses had been considered.
4. There is nothing put by way of evidence nor submissions which would lead to a conclusion that the respondent's evidence that it had considered the matters raised by the applicant in his reply of 25 November 2023 should be rejected. Accordingly this ground is not made out.

Ground 3

1. Ground 3 relies upon ss 116A(1) of the HS Act which is as follows: 116A Salary, conditions etc of staff employed in the NSW Health Service (other than senior executives) (1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.
2. The applicant's submissions, in relation to the third ground, are to the effect that the IR Act through the Award covers the field in relation to all conditions of employment of the applicant and thus the Direction was of no effect.
3. The applicant did not provide any authority in support of this submission.
4. The applicant is correct that an award made under the IR Act is a "law" for the purposes of ss 116(A)(1) (see Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 at [156]).
5. This ground, if accepted, would render ss 116A of the HS Act meaningless and with no work to do in relation to any employee of the respondent who is covered by an award made pursuant to the IR Act.
6. What is required under ss 116A is the presence of a specific condition of employment that is provided for in the Award which covers the same subject matter. The applicant did not identify any specific condition in the Award which provided the same condition as the Direction.
7. In the absence of any authority to support his submission and failure to identify any provision within the Award that dealt with the same subject matter as the Direction I find that the applicant has failed to make out this ground.

Ground 4

1. The applicant's submission in relation to this ground, is to the effect that the Determination constitutes a fresh claim by the respondent which is not permitted by cl 2 of the Award.
2. Turning to cl 2 of the Award, it is in the following terms: Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2022 by a party to this Award.
3. The applicant did not address the Commission on how the Determination constituted a "claim/demand" for extra or reduced conditions of employment.
4. In Health Services Union and others and Director-General, NSW Department of Health and another [2010] NSWIRComm 42 (the "HSU Case") the Full Bench dealt with the issue of whether the respondent's unilateral change to the private motor vehicle usage policy constituted a contravention of a number of 'no extra claims" clauses in various Awards and MOU's.
5. The wording of the 'no extra claims' clause was for all intents and purposes very similar to that in the Award. In considering what was meant by claim, demand etc the Full Bench reached the following conclusion: 52 Further, and secondly, we agree with the contention of the Department that the alteration of the private use policy does not constitute a proceeding, claim or demand concerning wages or conditions of employment covered by the various awards. The " no extra claims " provision is designed to ensure the agreement is reached in respect to matters already in the health industry awards (either as new or varied). Those matters will not be revisited during the life of the MOU save by agreement.
6. Following the approach of the Full Bench in the HSU Case, the Direction is not a claim/demand etc that is prohibited by cl 2 of the Award and ground 4 is not made out.

Disposition

1. For the reasons above, I find that the applicant has not made out that the Dismissal was harsh, unreasonable or unjust. Accordingly I make the following order: 1. The application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2023