The applicant was employed by the respondent in a civilian capacity. She worked for the respondent from June 2017, initially on a series of temporary contracts. She was employed on an ongoing basis from August 2019 until she was dismissed on 11 March 2022.
In very short summary, the applicant was dismissed because she did not comply with the respondent's requirement that she be vaccinated against COVID-19.
The respondent described the dismissal as being for misconduct, in not complying with a lawful and reasonable direction.
[2]
The applicant's evidence
The applicant's evidence came from two written statements dated 2 May 2022 and 7 June 2022 (together "the Applicant's Statements").
In the Applicant's Statements, she gave evidence of her employment history in the NSW Police Force Firearms Registry ("NSWPFFR"), including that:
1. When COVID-19 first impacted her work in March 2020, she was identified as a key employee and was given tools to access her work remotely; and
2. She was the recipient of a Certificate of Appreciation from the Commander of the NSWPFFR in February 2021 for her commitment to duties, superior level of service, and her ability to react to policy change and lead implementation of significant change.
On 7 September 2021, the applicant received notice by email that the respondent was implementing a requirement of "Mandatory Vaccination for all NSW Police employees." [1] On 10 September 2021 she received a follow up email directed to those members of the NSW Police Force ("NSWPF") who the NSWPF did not have recorded as vaccinated.
On 5 October 2021, the applicant returned to work from a period of leave and read an email of 24 September 2021, again referring to the vaccination requirements.
These emails had the same key points:
1. A requirement for NSWPF members to have a first dose of a COVID-19 vaccination by 30 September 2021;
2. A requirement for NSWPF members to have a second dose of a COVID-19 vaccination dose by 30 November 2021;
3. Links to information about the policy detail, including exemption options; and
4. Links to information about why the policy was being implemented.
In the email of 7 September 2021, the latter two points were merged into a single link.
The applicant gave evidence that during a meeting with her manager on 5 October 2021 she told him that she would be seeking an exemption under the broad discretionary limb ("General Discretion Exemption"), as she did not have a medical exemption.
On 7 October 2021 the applicant was called to a meeting with her manager and told that, as she was unvaccinated, she could not remain in the workplace. She was directed to take annual leave. In response, she repeated her intention to seek a General Discretion Exemption. She left her workplace as directed by her manager.
On 8 October 2021, the applicant wrote to her manager objecting to being placed on annual leave.
On 11 October 2021 the applicant wrote to her manager seeking the General Discretion Exemption, and setting out that:
1. She was not "anti-vax, generally; I am pro-choice";
2. Her health circumstances did not fit the medical contraindication exemption offered by the NSWPF vaccination policy, but that she was concerned about how the COVID-19 vaccine could interact with the drugs she was prescribed for her cancer treatment. She set out various side effects she had experienced from some drugs previously prescribed to her during treatment for cancer;
3. She sought, as an alternative to being vaccinated, to work remotely, wear various PPE, undertake regular COVID-19 screening or any combination of those alternatives; and
4. She had an "overwhelmingly positive" work history.
The applicant's General Discretion Exemption application sought an exemption under that part of the vaccination requirement policy which allowed for exemptions at the "absolute discretion" of the respondent.
On 21 October 2021, the applicant sent a medical contraindication certificate, which would apply under a different part of the vaccination policy. The certificate set out "anxiety disorder" as the basis for the contraindication ("Medical Contraindication Exemption").
On 27 and 28 October 2021, the applicant had conversations with her "support person", in which that person told the applicant she had been sent an email relating to the vaccination requirement. It wasn't explicit from the applicant's evidence, or from text messages attached, exactly what those emails were about, other than generally relating to the vaccination requirement.
On 28 October 2021, the applicant received an email from her support person, forwarding an email which indicated that the applicant's COVID-19 vaccination medical contraindication certificate had not been accepted by the respondent as establishing a medical contraindication acceptable to the respondent.
On 6 December 2021, the applicant received an email from the respondent alleging that she had engaged in misconduct by failing to be vaccinated, without possessing an approved exemption. She was given 14 days to provide any response to that allegation, so that her response could be considered in determining what action the respondent would take.
The letter received by the applicant on 6 December 2021 referenced only the General Discretion Exemption sought by the applicant. It did not reference the Medical Contraindication Exemption sought by her.
The applicant responded on 20 December 2021:
1. Denying that she had engaged in misconduct;
2. Repeating a willingness to work remotely, or use PPE to reduce the risk of transmitting COVID-19;
3. Noting that she had not received a specific reply to her General Discretion Exemption;
4. Seeking a range of answers to various matters about the refusal of the General Discretion Exemption, notwithstanding also asserting that she had not received a response to that request;
5. Denying that the vaccination requirements were lawful or reasonable; and
6. Setting out that she would not provide a "full submission in reply to the unfounded Allegations of Misconduct" until she received "details of the reasons [her General Discretion Exemption] submission was not accepted together with details of why my Medical Contraindication Exemption was not accepted, and why other working arrangements were not made available to [her] …".
On 12 January 2022, the applicant received a letter from the respondent setting out a finding of misconduct, essentially in the same terms alleged in the earlier letter. The 12 January letter advised that the proposed outcome was termination, with the opportunity to resign.
The letter of 12 January did not reference either of the applicant's earlier exemption requests and appeared to be largely a standard form letter. It did squarely provide one important statement, being that:
"This is not a case where the Commissioner of Police is depriving you of your right to decide whether to get vaccinated or not. That remains a matter for you to determine." [2]
On 24 January 2022, the applicant responded to the letter of 12 January 2022, largely in the same terms as her response of 20 December 2021.
On 10 March 2022, the applicant received a letter from the respondent dismissing her. The letter was dated 24 February 2022. The letter provided that the respondent would dismiss the applicant on 11 March 2022, unless she resigned prior to 11 March 2022.
The 24 February letter addressed in detail the issues raised in both exemption applications of the applicant, although it did not do so by specific reference to the applicant's letters of 11 October and 21 October 2021.
The 24 February letter set out that the applicant did not have a medical contraindication of the kind acceptable to the respondent and rejected the applicant's submissions as to alternative working arrangements. The letter specifically rejected the notion that the applicant's job could be performed remotely on an ongoing basis.
[3]
Cross examination of the applicant
During cross examination it became clearer how the applicant saw the distinction between her two exemption requests.
Her evidence was that, from 1 October 2021, she had a medical contraindication certificate to the COVID-19 vaccine, based on her anxiety at the prospect of vaccination. She chose not to submit that form initially, as it was only valid for 3 months. She initially pursued the General Discretion Exemption, as she saw that as a longer-term option to be exempted from the vaccination requirement. Later, she also submitted the medical contraindication form, thus having made two distinct requests for exemption.
It also became clearer that, at least initially, she understood that the response to her General Discretion Exemption was less than a rejection of that request, and more in the nature that no final decision had been taken.
It was put to her that she in fact saw the doctor later than 1 October 2021 and had the doctor back date the contraindication form to 1 October 2021. The applicant denied this, and the form is clearly dated 1 October 2021.
In answer to specific, direct questions, the applicant agreed she did not comply with the direction to be vaccinated, and that in doing so she exercised a choice not to be vaccinated. She re-iterated that she was not prepared to be vaccinated until she knew how the vaccination might interact with other medication which she had been prescribed.
The applicant confirmed she was not vaccinated as at the date of the hearing and had not changed her position as to being vaccinated.
It was squarely put to the applicant that she understood the misconduct allegation against her was that she had not complied with the vaccination direction, and she agreed she understood this. She did not accept that this refusal could properly be described as misconduct.
She also agreed that she was given an opportunity to make submissions about the proposed disciplinary outcome following the finding of misconduct and that she did make such submissions.
The applicant agreed that a substantial body of information about COVID-19, and vaccination against it, had been disseminated by the NSWPF to members.
[4]
Cameron Lindsay
Superintendent Lindsay was the Commander of the NSWPFFR, and therefore the most senior officer at the site where the applicant worked. He gave evidence about the work of the NSWPFFR.
Superintendent Lindsay's evidence was that the work of the NSWPFFR needed to be done on site, except for short periods, and by exception. His evidence was clear and cogent, including for reasons related to the need for access to computer and other records which could not be accessed remotely, and the need for close supervision given the nature of the work.
His evidence was that even where remote working had been permitted or made necessary for short periods, the work performed during this time needed to be reviewed and updated on the employee's return to the workplace where they had access to information not available remotely. He referenced examples where, due to COVID-19 isolation and local flooding, limited duration remote working had occurred and where the limitations he had described in theory had played out in fact.
Superintendent Lindsay also set out in detail the importance of the work of the NSWPFFR, emphasising that to make proper decisions employees in the NSWPFFR needed the full range of information that was only available when physically present at the office of the NSWPFFR.
Superintendent Lindsay gave a history of the introduction of the NSWPF's COVID-19 vaccination requirement. His outline of the applicant being informed of the requirement, and of her seeking exemptions to the requirement largely accorded with the applicant's evidence. His recollection of his conversations with the applicant varied in some details from the applicant's recollection. The Commission does not consider those differences meaningful.
Superintendent Lindsay gave evidence of conversations where he propounded the NSWPF position that the applicant would need to be vaccinated or have an exemption to be in the workplace. On Superintendent Lindsay's evidence the applicant did not intend to be vaccinated and intended to seek an exemption. The applicant did not agree she needed to be excluded from the workplace if unvaccinated, or alternatively considered she should be allowed to work remotely if unvaccinated and not granted an exemption.
Superintendent Lindsay's evidence of the applicant submitting first a General Discretion Exemption request on 11 October and then a Medical Contraindication Exemption request on 21 October 2021 accorded with the applicant's evidence.
His evidence of responding to her Medical Contraindication Exemption request, with the answer that anxiety was not a valid basis for such an exemption, also accorded with the applicant's evidence.
Superintendent Lindsay gave evidence of, and produced to the Commission, an email addressed to the applicant, and copied to Superintendent Lindsay, of 15 November 2021, which explicitly set out that neither of the applicant's exemption requests had been granted, that she had not produced evidence of being vaccinated and therefore she could not return to the workplace. This email was not part of the applicant's evidence.
The remainder of Superintendent Lindsay's evidence about the applicant's employment and her dismissal simply referenced documents attached to the applicant's witness statement. That is, it accorded with the applicant's history of letters exchanged between the applicant and the NSWPF.
[5]
David Driver
Superintendent Driver was the officer within the Professional Standards Command of the NSWPF who took the decision to dismiss the applicant. He was also responsible for work health and safety matters within the NSWPF and this included COVID-19 responses.
He set out in considerable detail a history of:
1. The NSWPF enforcement of COVID-19 public health orders;
2. Priority access to COVID-19 vaccinations granted to members of the NSWPF;
3. Mandatory vaccination requirements for NSWPF members in certain settings prior to 7 September 2021, such as hotel quarantine;
4. Encouragement by the NSWPF for its members to become vaccinated;
5. The impacts of the Delta outbreak from June 2021, and how this had several impacts which caused greater numbers of NSWPF members to become infected, and the impact on the NSWPF workforce of infections and mandatory isolation;
6. How public health orders, driven by the Delta variant, prevented NSWPF members living in certain local government areas from attending work if unvaccinated; and
7. The information provided via the NSWPF intranet about COVID-19, inflection controls and the benefits and availability of vaccination.
Superintendent Driver set out the process whereby the NSWPF concluded that, especially in light of the Delta variant outbreak, lower order mitigants were no longer satisfactory, and the NSWPF needed to mandate what it considered the higher order risk mitigant of vaccination for all NSWPF members. His evidence was that given the size of the workforce, and the urgency of the situation, an expedited process was needed to implement the vaccination requirement.
Superintendent Driver's evidence was that, in lieu of upfront workforce wide consultation and given the volume of material already provided to NSWPF members about vaccination, and the fact that approximately 80% of the NSWPF workforce were fully vaccinated, specific concerns of individual members could be properly addressed via the exemption request process.
He gave evidence of discussions the NSWPF had with both the Police Association and the Public Service Association about the vaccination requirements.
Superintendent Driver's evidence was that in deciding to dismiss the applicant, he had considered the applicant's General Discretion Exemption request, her Medical Contraindication Exemption request, and her letters in response to each of the show cause letters.
Superintendent Driver's evidence was that the vaccination requirement remains in force for NSWPF members.
[6]
Cross examination of the respondent's witnesses
In cross examination, Superintendent Lindsay agreed that, other than the vaccination direction, he was unaware of any instance of the applicant not following a direction given to her.
Cross examination of Superintendent Driver focused on two matters, being:
1. Firstly, an assertion that non-compliance with the vaccination requirement should not be categorised as misconduct; a proposition that Superintendent Driver did not accept; and
2. Secondly, it was put to Superintendent Driver that the risk assessment of the NSWPF as to COVID-19 and vaccination did not incorporate any feedback from calls to the NSWPF helpdesk line. He didn't agree that was the case, but his answer did not directly explain why that was the case. Superintendent Driver agreed no specific risk assessment was conducted of the NSWPFFR workplace.
[7]
The applicant
The applicant's case had four bases, being:
1. The direction to be vaccinated was not lawful and reasonable, because the respondent had failed to consult with the workforce, or the applicant personally, about the imposition of the vaccination requirement;
2. There not being any act of the applicant which could be categorised as misconduct;
3. The applicant being ready, willing, and able to perform her job; and
4. A lack of procedural fairness, including a failure to follow proper process.
The procedural fairness issues covered a failure by the respondent to follow a stepped process of the Commissioner of Police receiving an allegation which could then be put to the applicant. It was submitted that by the respondent writing to the applicant and directly alleging misconduct, without that external allegation, due process had not been followed.
It was also submitted that the applicant never received a direct, clear response stating that she had been refused the General Discretion Exemption. Further, in refusing to provide answers to the questions put by the applicant in her letter of 20 December 2021, the respondent had denied her the opportunity to properly respond to the misconduct allegations.
Contrary to the express wording used by the respondent, that the applicant was not able to perform work, it was submitted that the applicant was at all times ready, willing and able to perform her work. She was willing to work remotely, under a rigorous testing regime or subject to physical distancing and PPE requirements, if required.
By implication rather than direct submission, the combination of the applicant's medical history and her willingness to be subjected to alternative work arrangements such as working remotely, under a rigorous testing regime or subject to physical distancing and PPE requirements made dismissing her for not being vaccinated unreasonable.
As to a lack of any act of misconduct, the submission was that not submitting to the vaccination requirement could not properly be categorised as misconduct.
The submissions as to whether the vaccination requirement was lawful and reasonable were directed only to the submitted failure of the respondent to properly consult. The Commission was taken at a high level to the Work Health and Safety Act 2011 ('WHS Act'), although not to the text of specific sections.
The applicant took the Commission, at a very general level, through some cases which were in a bundle provided by the respondent. It was submitted, correctly, that in those cases the employer had consulted with their workforce prior to implementing a vaccine requirement, or had done so after implementing such a requirement, but before dismissing any employee. Mr Townsend cited Nekho v Rentokil Initial Pty Ltd [2022] FWC 1632 and Tween v Qantas Airways Ltd [2022] FWC 1594 as examples of the latter circumstance.
[8]
The respondent
In a written Outline Submission filed prior to hearing, the respondent outlined its case as being:
"1. The Commissioner of Police, the Respondent, issued a direction in September 2021, requiring all members of the NSW Police Force … to obtain two doses of a COVID-19 vaccination by a particular date. [The Applicant] … was an administrative employee of the Respondent. She did not comply with the direction.
2. On 11 March 2022, because of her failure to comply with the direction, the Applicant's employment was terminated, after first being given the opportunity to resign.
3. These proceedings are narrow in compass. The Applicant says the direction to get vaccinated was not lawful and not reasonable, and therefore, she has not engaged in misconduct by not complying with it. The Respondent says the direction was lawful and reasonable, and the Applicant's decision to not comply with it amounts to misconduct, which is answered by the termination of her employment."
At the hearing and in further written submissions, these were developed to cover issues raised by the applicant outside the narrow scope of whether the direction to be vaccinated was lawful and reasonable.
The respondent submitted that the applicant bore the legal onus of establishing her dismissal was harsh, unreasonable or unjust [3] , but conceded that it bore the onus of proving the applicant engaged in misconduct, and that the misconduct warranted dismissal [4] .
The respondent submitted that the vaccination requirement was made, and the applicant did not get vaccinated. The respondent further submitted that the vaccination requirement was lawful and reasonable, and the failure to comply with that requirement warranted dismissal.
During the hearing of this matter, the Commission expressed some scepticism that "misconduct" was the correct term or label to use for non-compliance with the vaccination requirement. The respondent's submission was that, as a matter of law, a deliberate decision not to comply with a lawful and reasonable direction is misconduct, however tough a description that may appear.
In oral submissions, Mr Watts of Counsel for the respondent took the Commission to the decision of Commissioner Murphy in Ramadas v Industrial Relations Secretary on behalf of Legal Aid Commission of New South Wales [2019] NSWIRComm 1075, as to the consequences of an employee breaching a lawful and reasonable direction of their employer. At [84]-[85] of Ramadas:
"The appellant's blatant refusal to comply with this lawful and reasonable direction from her team leader struck at the very heart of the employment relationship and disclosed an intention on her part to not be bound by the usual obligation on an employee to comply with such a direction. In this regard, the appellant misconducted herself, so as to warrant, without more, the termination of her employment."
As to the requirement being lawful, the respondent submitted that a direction can only be unlawful if it directs an employee to do something that is contrary to law. The respondent also pointed to s 8(4) of the Police Act 1990 which specifically empowers the Commissioner of Police to:
" … issue … instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force."
Mr Watts also took the Commission to the views expressed by a Full Bench of the Fair Work Commission in CFMMEU & ANOR V Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059 at [85]:
"We accept the object of purpose that the site access requirement is to protect the health and safety at work of Mount Arthur's employees and other people at the mine. On that basis, the site access requirement is, prima facie, lawful because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated."
As to the vaccination requirement being reasonable, the respondent addressed a number of issues.
Firstly, the respondent submitted that there was a strong underlying health and safety rationale for the requirement. In this respect it directed the Commission to "COVID-19 [involving] a high burden of diseases, and … risk of causing serious illness or death", and that the requirement had been implemented during the Delta variant outbreak. The respondent submitted that all the available vaccinations are effective and that vaccination is the "most effective and efficient control available to combat the risks associated with COVID-19".
The respondent submitted that it was relevant, indeed heavily in favor of reasonableness, that members of the NSWPF have little control over people with whom they interact, that the respondent has a duty to take reasonable steps to protect the members of the NSWPF, and that vaccination is a "higher order risk control that is reasonably practical to implement."
As to the applicant's submission that the respondent did not consult before implementing the requirement, the respondent submitted that:
1. Even a total absence of consultation would only be a factor in whether a requirement was reasonable, not determinative;
2. The statutory duty to consult in s 47 of the WHS Act only applies where such consultation is reasonably practicable, and the circumstances at the time the vaccination requirement was issued brought into question whether consultation was required at all; and
3. Nevertheless, the respondent created a process whereby it could take into account any dissenting views of employees. This included creating a general discretion exemption and conducting, albeit limited, consultation with the two industrial organisations representing members of the NSWPF. The respondent did not make decisions to dismiss any employees until after these consultations, and after giving those employees opportunities to make any submissions they saw fit on the vaccination requirement.
The respondent submitted that the applicant had not put forward any issues of law or fact to the Commission that she would have wished to put to the respondent, nor had she suggested anything the respondent could have told her during consultation which would have changed her position that she would not be vaccinated.
The respondent submitted that the applicant had the opportunity to consult her own doctor about the impact of vaccination on her existing prescriptions, and she gave evidence that she refrained from asking her doctor. Mr Watts took the Commission to Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 as authority for the proposition that an employee can't decline to ask their own doctor about these matters and then lay responsibility on their employer to provide bespoke individual advice to that employee about the risks of vaccination.
Mr Watts also took the Commission at a relatively high level to a series of decisions of the Fair Work Commission concerning dismissals of employees where there was no public health order in place, but where the employer had a vaccination requirement for their workplace. Those decisions are not set out in detail here, as they were put no higher than that such a policy could be a basis for a requirement to be vaccinated, without the need for public health order.
[9]
Consideration
In totality there was not a great deal of difference between the parties about the underlying facts.
There was a direction issued by the Commissioner of Police that from September 2021, members of the NSWPF needed to have had their first dose of a COVID-19 vaccination, and that from November 2021, they needed to have had two doses of a COVID-19 vaccination. The applicant did not comply with that direction.
There was some disagreement from the applicant about whether the direction meant she could be in the workplace, or could not work, but it was clear that the Commissioner of Police had issued a direction requiring members of the NSWPF to become vaccinated.
The applicant pursued a process seeking one exemption from this requirement based on her personal circumstances and one based on a medical contradiction form. The latter was based on a what was described as an anxiety disorder, with no greater detail provided.
The Medical Contraindication Exemption request was rejected as not being within the scope of acceptable medical contraindications to the COVID-19 vaccinations.
The time at which the vaccination requirement was set, and the Medical Contraindication Exemption rejected, was the height of the Delta variant outbreak in NSW. Widespread lockdowns which responded to that outbreak were in effect at that time. Accordingly, it is not possible to see that rejection as unfair.
This rejection was clearly communicated to the applicant, and it was clear that the basis for the rejection was understood by the applicant. Indeed, it might be inferred that she accepted that rejection, as when the limited time covered by the form expired on 1 January 2022, the applicant did not apparently seek to have it renewed. Certainly, no evidence of any attempt was produced to the Commission.
The General Discretion Exemption was the subject of conflicting submissions, and some ambiguity as to its rejection. The respondent maintained the request was rejected, but the applicant maintained that it had never been clearly and squarely rejected.
While it is true that early on there was a failure by the respondent to use clear words that the request had been denied, it is clear from the totality of the evidence that the applicant ultimately understood this request was denied.
This can be seen in various letters from the applicant where she purports to reserve her rights to respond, after she has been given further details about the reasons for that denial.
Further, the issue of the General Discretion Exemption request is squarely addressed in the final show cause letter by reference to the date of the applicant's letter seeking that exemption.
Again, the circumstances at the time of the request and its rejection do not support the rejection of the request being unfair.
The applicant could have sought medical evidence to support her concerns about interactions with her pre-existing prescriptions, but consciously did not seek that evidence, despite meeting with her doctor specifically about medical contraindications. Consequently, little weight can be given to the applicant's submitted concerns about the potential interaction between any vaccination and her pre-existing prescriptions.
It is noted that only a small part of the applicant's letter of 11 October 2021 seeking a General Discretion Exemption forms a sensible basis for requesting an exemption. The remainder quoted large parts of a dissenting decision from the Fair Work Commission and was frankly irrelevant to the request.
I accept the respondent's submissions as to consultation. A failure to consult, which is not absolute under the WHS Act, could be a factor in whether a direction was not reasonable, but could not be determinative.
In my view, the context of:
1. the time at which the vaccination requirement was implemented;
2. the scale of the NSWPF workforce and its geographic coverage; and
3. the ability for employees to make individual general discretion requests;
answers completely any submission that the absence of a formal pre-implementation consultation makes the vaccination requirement unreasonable.
The question of the legality of the vaccination requirement is as simple as the respondent says. It is not unlawful to be vaccinated, and so the requirement is lawful. This is consistent with previous decisions of this Commission, and of the Fair Work Commission.
The evidence of Superintendent Lindsay was coherent and compelling as to the need for the applicant to work at the offices of the NSWPFFR and not remotely. The evidence of Superintendent Driver as to why using PPE or undertaking regular testing was not a satisfactory alternative to vaccination was also coherent and compelling.
Further, no basis was advanced why the respondent did not have the right as the employer to decide where it wanted the work performed.
The applicant's submissions that she was ready, willing and able to work are therefore not accepted.
As to whether a conscious decision not to comply with the direction warranted dismissal, the respondent's submissions are accepted, contrary to reservations expressed by the Commission during the hearing of this matter.
As submitted by the respondent, the NSWPF, more than most workplaces, has a requirement for discipline. Vaccination was a sensible and easily adopted response to the high level of concerns held by the NSWPF and the community generally at the time. The Applicant did not comply with that lawful and reasonable direction.
The show cause letters of the respondent make clear that the applicant had a choice to be vaccinated, or not. But that choice came with a clear consequence. It was made abundantly clear that the applicant would be dismissed if she did not become vaccinated against COVID-19.
The respondent's decision to dismiss the applicant came after a stepped process in which the respondent:
1. Told the applicant what was required of her, why, gave her an opportunity to seek an exemption from that requirement, considered her request to be exempted and told her those requests had been denied;
2. Squarely told the applicant that it considered that her failure to comply with the requirement was misconduct, gave her an opportunity to respond to that conclusion, and considered her response, before concluding that her failure to be vaccinated was misconduct; and
3. Told the applicant of its proposed response to the finding of misconduct, gave her an opportunity to respond to that conclusion, and considered her response, before advising her of the outcome of that consideration.
The respondent observed procedural fairness through that process, save for one possible matter which was not a basis advanced by the applicant, or of submission from the parties.
By notice dated 24 February 2022, the respondent told the applicant it had determined that the outcome of the applicant's failure to comply with the vaccination requirement was that she be dismissed, with an opportunity to resign, if she resigned by 11 March 2022.
The respondent served that notice on the applicant on 10 March 2022, and so the two weeks for the applicant to consider if she wished to resign, contemplated by the 24 February notice, was reduced to one day.
The Commission has not considered if the loss of the contemplated two weeks for deciding if she should resign was accordingly unreasonable, because this was not an issue put to the Commission.
In any event it is clear from the totality of the evidence that, had the respondent given the applicant two weeks to decide if she wished to resign, the outcome would inevitably have been the same. The applicant would have resigned or been dismissed.
[10]
Outcome
It is inevitable from the foregoing consideration that the dismissal of the applicant was not harsh, unreasonable or unjust as contemplated by s 84 of the Industrial Relations Act 1996 ("IR Act").
There was a reason for the dismissal, the existence of which was established; the consequence of dismissal was appropriate given that reason; and there was a fair process to establish the existence of the reason and to determine the consequence of dismissal.
For completeness, the four bases on which the applicant's case was put are now addressed explicitly.
The direction to be vaccinated was lawful generally, as set out above at [94].
The direction was reasonable, in particular because of the circumstances at the time it was implemented, as set out above at [92]-[93].
The applicant did not comply with the vaccination requirement, and as set out in [98] above this clearly constituted misconduct.
The applicant was not actually ready, willing and able to work, or at least not on the terms required of her by her employer, as set out above at [95]-[97].
The dismissal was therefore not unjust as the substantive reason advanced by the employer for her dismissal did exist, as put by the respondent to the applicant and as put before the Commission.
The submission that the lack of an external complaint to the Commissioner of Police, founding allegations of misconduct to be put to the applicant, constitutes procedural unfairness is rejected. This would require an overly technical approach by the Commission. As set out in [101] above, the respondent followed a thorough process.
The General Discretion Exemption was, as set in [85]-[89] above, and contrary to the submission of the applicant, denied. The applicant was aware of that outcome, and I have determined that denial was a fair decision.
The dismissal was not unreasonable for any failure to follow a procedurally fair process.
The foregoing takes into account those parts of s 88 of the IR Act which are relevant in this case, being 88(a), 88(b) and 88(d). Paragraphs 88(c) and (e) are not relevant in this matter.
[11]
Orders
Pursuant to s 87 of the IR Act, the application is dismissed.
[12]
Endnotes
Exhibit A2, Attachment E
Ex A1, Attachment T
Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70
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Decision last updated: 14 March 2023