[46] The Appellant's evidence about his employment and the alleged dismissal included:

"PN106 I don't have a lot to say necessarily about the facts, maybe none of the facts are especially contentious in terms of I think it's agreed you haven't worked since that particular date, or you haven't been given certain shifts, or you haven't been given shifts since whenever it was, 15 October. So you might not necessarily want to say very much about the facts if you don't disagree with what Mr Greig has said, but it's up to you. What do you say are the facts - leave the bench book - you can come back to the bench book when it's your turn for the submissions, but just in relation to the facts what do you say is relevant here and what do you say are the facts? Okay. First of all just last year I worked for Cotton On also and I worked a full season, so I had shifts every week, 40 hours a week minimum and sometimes they wanted me to work five or six - six or even seven days a week. So the shifts - and when I was re-employed again I was told that I would be employed for the entire season. The season usually runs until after new year's or something like that. So I should be - regardless of any vaccine I should be continually employed and being offered shifts as I was last year. Now, when it comes to - basically my relationship with the employer has changed. At the start in my contract there was nothing stipulating any medical procedure. There's nothing saying anything about COVID and the fact that my employment, my continual shifts being offered are reliant on any vaccine. There was nothing in my contract about that, nothing even mentioned by the HR man who hired me saying that a vaccine was going to be necessary by the 15th or anything. That's - but that's not - I'm getting off the track there, excuse me. So basically my argument is that I am no longer being offered shifts when I normally would be, and that is - that is basically - that is to me termination. That's termination of my employment, because I'm not being offered any shifts."[23]

[47] This evidence was also not directly disputed however the notion that this represented a dismissal was clearly in issue. The Appellant also gave evidence in effect that in more recent times he would normally work Sundays to Thursdays and after Friday 15 October the Roster system (Dimensions) did not show any further shifts for him.[24]

[48] The evidence[25] of the Respondent was that the Appellant's HR management system file had not been marked with a termination date and remained active. Further, that the Appellant had not been advised that he had been terminated. Rather, the Appellant had on 14 October 2021 been informed that he could not be scheduled for work (at the Distribution Centre) unless he received his first (vaccination) dose or was booked in for his first dose by 22 October 2021[26].

[49] It was also the evidence[27] of the Respondent to the effect that any (still active) casuals such a Mr Varichak who advised that they had become vaccinated would be able to be scheduled for work onsite at the Distribution Centre. It was common ground that the Appellant had advised that he was not intending to be vaccinated and that he had not been offered any shifts after 15 October 2021.

[50] The GP application was lodged on 20 October 2021.

[51] On 21 October 2021, the Respondent confirmed by email that (the Appellant) "cannot attend work if they had not produced their vaccination status or had not received their first vaccination by 22 October 2021."[28]

[52] It is evident from the Decision that the Deputy President accepted the following propositions:

• The Respondent did not dismiss the Appellant but rather advised him that it was subject to a legal requirement not to allow the Appellant to attend the workplace unless he provided proof of vaccination;[29]

• The Appellant had chosen, by not becoming vaccinated, to render himself "unable to perform the inherent requirement of his role as a casual forklift driver, namely, to be lawfully able to attend the workplace";[30] (second finding) and

• The Appellant remained an active casual on the Respondent's HR system and was ready to deploy him if "he becomes vaccinated or if government requirements otherwise allow..."[31]

[53] We understand that the Appellant's concerns about the Deputy President "relying upon the law" when he was not given an opportunity to deal with that aspect relate primarily to the second finding. We observe that the Appellant sought to contest the legal validity of the Vaccination Directions during the hearing and the Deputy President correctly guided him to the immediate jurisdictional issue. In that light it was unnecessary and unhelpful to make the second finding by reference to the asserted legal validity of the Vaccination Directions.

[54] However, for reasons that we will come to this does not mean that the decision reached by the Deputy President on the immediate jurisdictional issue was an error.

[55] We accept that there was a change impacting the employment relationship that occurred in the context of the Vaccination Directions. However, not all changes in employment lead to a dismissal. Further, the fact that the Respondent had not expressly "terminated" the relationship and kept the Appellant on the books is relevant but cannot be determinative. The question remains whether the decision of the Respondent, not to offer further shifts to the Appellant in the context of the Directions and his response to not be vaccinated, was properly considered not be a dismissal at the relevant point.

[56] The combined effect of the evidence is that Mr Varichak was engaged as a casual employee and there was no firm advance commitment to offer or accept shifts. The general practice had been that, largely in the context of significant seasonal fluctuations, when work was available and the Respondent sought to engage Mr Varichak, significant hours were offered and worked.

[57] At the time of the application, the Appellant was not being offered any shifts and this was a consequence of the Vaccination Directions, the Respondent's view that this restriction applied to its workplace and the decision made by the Appellant not to become vaccinated. The Appellant has strong views about the validity of the Vaccination Directions and wished to challenge them through this application; however, this aspect does not impact on the assessment of whether there was a dismissal for present purposes. We emphasise that for reasons set out earlier, the role of the Commission at this point was to determine the narrow jurisdictional issue and not to determine whether there had been a breach of the general protections provisions of the Act or whether the Vaccination Directions or the actions taken by the employer were unfair.

[58] In the context of the casual employment operating in this matter and the absence of a mutual obligation to offer and accept work, we do not consider that at the time of the GP application it can be established that the Appellant had been dismissed from his employment with the Respondent. There was neither the termination of an employment contract or the employment relationship at that point. We observe that this finding is confined to the specific circumstances of the nature of the casual employment and the timing of the application evident in this particular matter. Further, the continuation of the Respondent's position not to offer shifts to Mr Varichak may have at some point changed the status of the relationship to the extent that a dismissal would result, but it had not at the relevant time.

[59] The Respondent did subsequently expressly terminate the Appellant's employment in early February 2022. In that respect, during preliminary proceedings[32] associated with the appeal, the Appellant was made aware that the February 2022 dismissal put the issue beyond doubt and that he could make a fresh GP application without the Respondent raising a jurisdictional issue. Further, we observe that the substance of the Appellant's dispute with the Respondent could have been, in light of the Decision, already taken to the Court as a non-dismissal General Protections matter[33] and this would appear to remain available. It is regrettable that one of these options was not taken up by the Appellant; however, we have dealt with the grounds of appeal on their own merits.

[60] In relation of the alleged misleading of the Deputy President by the Respondent about the Appellant's vaccination status, it is not clear whether the screenshots of the Respondent's HR system that the Appellant relied upon in the appeal were before the Deputy President. The context for this contention was that Mr Varichak had advised the Respondent that he was not vaccinated and this was confirmed in COG's system. In any event, a reasonable understanding of the Respondent's evidence is that the Appellant had not provided proof of his positive vaccination status (that he had been vaccinated) rather than he had not confirmed any vaccination status at all.

[61] In terms of the aspects of the conduct of the hearing beyond the second finding, we do not consider that the Deputy President's conduct of the hearing was in any sense inappropriate or led to unfairness. The Appellant's concerns, other than as related to the second finding, arise from his lack of appreciation of the difference between facts demonstrated by evidence and submissions about the legal impact of the events concerning the alleged termination. Further, the Deputy President also ensured that both parties understood the immediate issues and appropriately assisted the Appellant to lead and challenge relevant evidence.

[62] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

• The appeal raises issues of importance and/or general application;

• The Decision at first instance manifests an injustice, or the result is counter intuitive; or

• The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[63] Permission to appeal is refused and the appeal is dismissed.

[1] [2022] FWC 186.

[2] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

[3] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] - [46].

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[6] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

[7] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[8] Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd (2016) 260 IR 244, [2016] FWCFB 2654 at [11], Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339 at [11], Pawel v Australian Industrial Relations Commission [1999] FCA 1660; (1999) 94 FCR 231; 97 IR 392 at [14].

[11] Coles Supply Chain v Milford [2020] FCAFC 152; (2020) 300 IR 146 at [67] to [68].

[12] Coles Supply Chain v Milford [2020] FCAFC 152; (2020) 300 IR 146; Fair Work Ombudsman v Austrend International [2018] FCA 171; (2018) 273 IR 439 amongst many other examples. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589 at [116] and [117].

[13] [2017] FWCFB 5162 at [75].

[14] Although reaching a different conclusion on the disposition of the appeal, Colman DP took a similar approach to the operation of s.386(1) - see paras [120] to [122] and [128] to [129].

[15] [2022] FWCFB 55.

[16] Ibid at [44], [45] and [89].

[17] Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.

[18] (2008) 174 IR 21.

[20] Mr Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists - [2022] FWCFB 39.

[22] Respondent's outline of submissions before Colman DP.

[23] Transcript before Colman DP 28 January 2022.

[24] The evidence of Mr Varichak - transcript PN131 and PN132.

[26] The statement of Mr Grieg exhibit R1 at 7.

[27] The evidence of Mr Grieg - transcript PN79 and his witness statement at 12.

[28] The statement of Mr Grieg exhibit R1 at 11.

[32] Directions proceedings before Hampton C conducted on 22 February 2022.

Printed by authority of the Commonwealth Government Printer