Zsombor v New South Wales Institute of Sport Staff Agency ABN 975 882 795

Factual Background

1. The applicant commenced employment with the respondent as a strength and conditioning coach on or around 14 February 2011. His employment was the subject of a number of written contracts of employment, the last one dated 14 December 2020.
2. At some point prior to 14 September 2021, the respondent forwarded correspondence to staff including the applicant which contained information about a vaccination status survey and invited them to contact the respondent if they had any concerns about COVID-19 vaccination.
3. On 14 September 2021, the applicant wrote to the respondent expressing concerns with respect to COVID19 vaccination and also taking PCR tests. The applicant in the correspondence also requested that the respondent provide him further information with respect to the various COVID 19 vaccines.
4. On 16 September 2021, the respondent replied to the applicant's correspondence and informed the applicant that at that stage the respondent was merely requesting employees to complete a survey to assist in the assessment of the risks of becoming infected with the COVID 19 virus.
5. On 26 October 2021 the respondent, in an email to all staff, including the applicant, informed them that as a result of the completed risk assessment, all staff were directed to be vaccinated (the "Direction") as follows: 1. dose 1 - by 1 December 2021; and 2. dose 2 - by 17 January 2021. It provided an exception to those staff who provided a certificate completed by a medical practitioner stating that the staff member had a medical contraindication. A further exception was provided for exceptional circumstances. In both cases the application seeking an exemption needed to be provided to the respondent. The email concluded by stating the following: if you decide not to get vaccinated by the date specified, and you don't have an approved medical or other exemption, then you will not be able to work and will need to take leave while a code of conduct process is initiated. You cannot use sick leave or COVID special leave for this reason.
6. On 28 November 2021, the applicant asked a series of questions with respect to the Direction including whether his employment was at risk if he failed to become vaccinated. In this correspondence, he also applied for a special exemption on the basis that he was a participant of an international COVID-19 research control group.
7. On 2 December 2021, the respondent replied in writing and informed the applicant that his application for special exemption had been rejected and also that if he was unable to provide evidence of a first dose of the vaccine by 6 December 2021, he would be stood down and a performance management process would commence.
8. On 6 December 2021 the applicant wrote again to the respondent raising certain issues with respect to the Direction, alleging that it was unlawful for reasons including the direction was contrary to section 109 of the Constitution. Furthermore, the applicant requested various documents, including "the written law that requires me to undergo a force vaccination" and "the production of the written data that proves the vaccine has undergone the clinical trials required of vaccine to prove its safety".
9. On 8 December 2021, the respondent sent the applicant two separate letters, the first being a response to the applicant's letter of 6 December 2021 and the second being the provision of allegations of misconduct with respect to failure to follow the Direction.
10. In the letter raising the allegations of misconduct, the applicant was provided an opportunity to respond and was also put on notice that should the allegations be proven, he may well be subject to a range of disciplinary outcomes including the termination of his employment.
11. On 18 December 2021, the applicant wrote to the respondent in response to the allegations of misconduct and stated "I am still in the process of making my informed decision about mandated vaccination". Furthermore, the applicant requested a further period of time to consider all the information with respect to the Direction and the COVID-19 vaccines.
12. On 21 December 2021, the respondent informed the applicant that he was provided with a 30 day extension. Furthermore, he was put on notice that should he fail to provide evidence of a first dose of a COVID- 19 vaccination before 20 January 2022, then the performance management process outlined in the correspondence of 12 December 2021 would continue.
13. On 20 January 2021, the applicant wrote to the respondent and stated that "I am still in the process of making my informed decision about mandated vaccination". Further the applicant alleged that he had not been provided with sufficient information to determine whether the Direction was lawful and reasonable.
14. On 25 January 2022, the respondent forwarded the applicant correspondence stating that the allegations of misconduct for not complying with the Direction were substantiated and that the respondent was considering a range of possible actions under s 69 (4) of the Government Sector Employment Act 2013 ("GSE Act") and Part 8 of the Government Sector Employment Rules 2014 (the "Show Cause Letter"). The applicant was further put on notice that one of the actions being considered was the termination of his employment.
15. The Show Cause Letter informed the applicant that he had an opportunity to provide the respondent with a statement of factors which the respondent could take into consideration in determining what action should be taken. Such statement was to be provided within 14 days. The applicant was then stood down from duty, on full pay until the conclusion of the process.
16. On 8 February 2022, the applicant provided his response to the Show Cause Letter. Amongst other things, the applicant continued to maintain that the respondent had failed to prove that the Direction was lawful and reasonable.
17. On 22 February 2022, the respondent informed the applicant in correspondence that it had determined in accordance with s 69 (4) of the GSE Act that the applicant was to be provided with an opportunity to resign from his employment by 28 February 2022 or otherwise his employment would be terminated on 1 March 2022.
18. The applicant did not resign and accordingly his employment was terminated on 1 March 2022.

Submissions

1. The applicant's submission as set out in his statement of 27 April 2022 and oral submissions at the hearing, was that the termination of his employment was unfair in that the Direction was not lawful and reasonable.
2. As to unlawfulness, the applicant submitted that the policy may be in breach of the Nuremberg Code, the Universal Declaration of Human Rights, the Declaration of Helsinki, the Syracuse Principles and the Australian Human Rights Commission Act 1998 (the "AHRC Act").
3. The applicant submitted that the alleged breaches of the above instruments flowed from the principal that "no one shall be subjected without his free consent to medical or scientific experimentation". This submission although not expressed as such, can be characterised as one which alleges that the Direction is an attack upon the applicant's personal and bodily autonomy and integrity and is therefore illegal.
4. Although not precisely articulated, the alleged unreasonableness appears from the submissions, to be the respondent's failure to provide the applicant with sufficient guarantees as to the efficacy and safety of the vaccine. In furtherance of this submission, the applicant pointed to a number of alleged published articles and studies that questioned the efficacy and/or concluded that the vaccines were unsafe.
5. Another reason advanced by the applicant in oral submissions, was that other coaches were working from home, and that he should be able to as well, albeit in some modified position.
6. The respondent's submission is that the dismissal was not unfair taking into account the factors in s 88 of the IR Act. In particular, the respondent submitted that the Direction was lawful and reasonable.
7. As to the lawfulness of the Direction, the respondent submitted that there was no basis provided by the applicant nor was the respondent aware of any, which would lead to a finding that the Direction contravened any law.
8. In relation to reasonableness, the respondent made the following submission: Whether a direction is "reasonable" is essentially a question of fact and balance: McManus v Scott-Charlton (1996) 70 FCR 16 at 30. The reasonableness of the direction is demonstrated here by the following matters: (1) The Applicant's role and responsibilities necessitated close and in-person contact with athletes. (2) a risk assessment was undertaken and identified potential risks associated with the Applicant's role set out in paragraphs 10 and 12 above. (3) There were athletes with whom the Applicant was required to interact that were immunocompromised or otherwise at greater risk of serious disease. This kind of contextual consideration has been regarded as significant in other cases involving vaccination requirements: see, e.g, Barber V Goodstart Early Learning [2021] FWC 2156 at [343]-[347] (4) The Respondent owes a duty to "ensure, so far as is reasonably practicable, the health and safety of (a) workers engaged, or caused to be engaged by the person; and (B) workers whose activities in carrying out work are influenced or directed by the person, while the workers at work in the business or undertaking": Work Health and Safety Act 2011(NSW) s 19. Requiring all staff to be vaccinated plainly assists to comply with this duty.

Principles

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 and 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.

Consideration

1. The principal issue which needs to be resolved by the Commission in determining this application, is whether the Direction constituted a lawful and reasonable direction.
2. There have been a number of decisions of the Fair Work Commission which have determined that a policy which directs employees to become vaccinated against COVID-19 constitutes a lawful and reasonable direction e.g. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); and Australian Workers' Union; v ASC Pty Ltd T/A Australian Submarine Corporation[2022] FWC 1198; Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931; Stuart Tween v Qantas Airways Ltd [2022] FWC 1594; Les Tytula v Coventry Group Limited T/A Cooper Fluid Systems [2022] FWC 2085.
3. I also note the recent decision of Commissioner Sloan in Blackwood v Northern Beaches Council [2022] NSWIRComm 1052, in which he also determined at [21] that the respondents covid-19 policy that required vaccination against COVID-19 was lawful and reasonable.

Lawful Direction

1. With respect to the consideration of lawfulness, the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining, and Energy Union & Mr Matthew Howard v Mt Arthur Coal Mine Pty Ltd T/A Mt Arthur Coal (2021) 310 IR 399; [2021] FWCFB 6059 at [261] stated: If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.
2. As to the applicant's submission as to the illegality of the Direction based on bodily integrity and alleged contraventions of international codes and the Australian Human Rights Commission Act 1986 ("AHRC Act") he failed to provide any details of how and which parts of these instruments were contravened. I am not persuaded that the Direction constituted a contravention of any of the international codes nor the AHRC Act.
3. I am satisfied that on the material before me that the Direction was lawful. In reaching this conclusion I have had regard to the respondent's approach to its introduction following a detailed risk assessment and also that it was for the stated purpose of introducing an important control against the transmission of COVID - 19 across all of the respondent's workplaces.

Reasonable Direction

1. There is no doubt that the applicant was genuinely concerned as to the possible side-effects if he were to take any of the COVID - 19 vaccines. He made that position abundantly clear in both his communication with the respondent and also in his submissions to the Commission.
2. The respondent for its part, did what it could do to quell the applicants concerns, including informing the applicant that it had undertaken a risk assessment. The respondent also provided the applicant with the Internet location for information compiled by various Australian government agencies concerning the safety and effectiveness of the COVID-19 vaccines.
3. At no stage did the applicant indicate that he had in fact checked the information provided by the Australian government. Rather, it appeared that he relied upon the information in the various articles and alleged studies that he had found. The applicant did not seek to call any expert to support the opinions and conclusions expressed in these various articles and studies.
4. Given the COVID-19 vaccines had received the requisite level of approval from the Therapeutic Goods Administration, I give no credence to the articles and studies that the applicant relied upon in support of his submissions.
5. The applicant at various stages had contended that he could and therefore should be able to perform his role remotely. However he conceded in cross examination that as a strength and conditioning coach that he needed to be present to undertake various critical elements of his role. This included assisting with an athlete utilising a piece of gym equipment, spotting athletes while they were lifting weights and generally conceding that there was a significant part of his role which was required to be performed in person.
6. I am not persuaded by any of the applicant's arguments and find that the Direction was reasonable.

Conclusions

1. I am satisfied that the Direction constituted a lawful and reasonable direction and that the applicant's failure to comply with the direction was for a proper basis for his dismissal.
2. There is no other basis that arises from the submissions of the applicant that would otherwise render the dismissal harsh, unreasonable or unjust.
3. Given my earlier findings, I determine that the dismissal of the applicant was not unfair for the purposes of the IR Act and accordingly I order that the application be dismissed. Daniel O'Sullivan Commissioner

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: 12 October 2022