Covid19, workplaces and covid 19; the last word?

These extracts from a recent Fair Work Commission appeal to a Full Bench of the Fair Work Commission concern an appeal from what has become an orthodox decision of the Commission in an unfair dismissal case to not support an unvaccinated employee (against Covid19) who was dismissed for being unable to meet the inherent requirements of the job because of, in this case, health mandates issued by the Acting Chief Health Officer of Victoria issued as the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Directions), which render it an unlawful for certain employers to permit entry to a workplace by unvaccinated employees.

While the decision almost certainly will not be the last word on the issue by the Commission, it certainly is consistent with a clear pattern of fair work and workplace law decisions around Australia which have consistently rejected the various arguments which have been routinely put on the issue of unfair dismissal for employees not vaccinated against the virus.

“[20] For the reasons which follow, we do not consider that it would be in the public interest to grant permission to appeal in this matter.

21] The core findings in the decision under appeal are that the relevant effect of the Directions was that Mercy could not lawfully allow Ms Roman to attend her workplace at the Werribee hospital on or after 15 October 2021 and that, as a consequence, she could not from that time perform her job. This made inevitable, we consider, a finding under s 387 of the FW Act that there was a valid reason for Ms Roman’s dismissal relating to her capacity. It also supported the Deputy President’s findings that Mercy’s direction to Ms Roman to provide advice as to her vaccination status was lawful and reasonable, since it concerned Ms Roman’s capacity to continue to perform her job, and that Ms Roman’s failure to comply with this direction constituted a further valid reason for her dismissal relating to her conduct. Additionally, these core findings foreclosed any real possibility that Ms Roman’s dismissal could be found to be harsh, notwithstanding the existence of a valid reason for dismissal because, from 15 October 2021, no reasonable alternative to the termination of her employment was capable of identification.

…………………………………………………..If Ms Roman’s contentions of invalidity had any merit, this ground of appeal might conceivably attract the public interest such as to permit the grant of permission to appeal. However, they patently do not. As to appeal ground 7(a), Ms Roman’s argument, as best we understand, proceeds as follows:

  • s 477(1) of the Biosecurity Act, broadly speaking,empowers the federal Health Minister, during a human biosecurity emergency period, to determine any requirement that they are satisfied is necessary to prevent or control the entry of a declared disease into Australia, its emergence, establishment or spread within Australia, or its spread to another country, or to give effect to a World Health Organisation recommendation in relation to the disease;
  • s 477(6) provides that a determination under s 477(1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of Pt 3 of Ch 2, which relevantly includes (in s 92(a)) a requirement to receive a specified vaccination at a specified medical facility;
  • s 478(1) confers a power on the federal Health Minister, expressed in equivalent terms to s 477(1), to give directions to a person during a human biosecurity emergency period, subject to a limitation in s 478(6) expressed in equivalent terms to s 477(6);
  • s 477(5) provides that a requirement under s 477(1) applies despite any provision of any other Australia law, and s 478(4) makes the same provision with respect to a direction made under s 478(1);
  • s 8(1) provides that the Biosecurity Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act, but s 8(2) provides that this is subject to ss 477(5) and 478(4); and
  • the Directions are rendered invalid by s 109 of the Constitution because, insofar as they require vaccination, they are inconsistent with the limitations on power in s 477(6) and s 478(6), and the effect of ss 8(2), 477(5) and 478(4) is that the Biosecurity Act is intended to override and not operate concurrently with inconsistent State laws.

[28] The flaws in this argument are, with respect, self-evident. Sections 477(6) and 478(6) are limitations on the powers of the federal Health Minister conferred by ss 477(1) and 478(1) respectively, to the relevant effect that the Minister cannot require or direct a person to be vaccinated. No inconsistency between the Biosecurity Act and the Directions arises because:

(1) sections 477(6) and 478(6) do not constitute or effect any limitation on the powers of the Victorian Chief Health Officer under s 200(1)(d) of the PHW Act; and

(2) in any event, the Directions do not require or direct any person to be vaccinated; rather, they relevantly require vaccination as a condition of entry to certain premises.

[29] Appeal grounds 7(b) and 7(c), as well as ground 15, as elaborated in oral submissions, appear to involve a contention that the Directions are invalid because they infringe s 51(xxiiiA) of the Constitution, which confers power on the federal Parliament to legislate for, relevantly, “the provision of … medical and dental services (but not so as to authorize any form of civil conscription)…”. An argument of this nature was rejected by the NSW Court of Appeal in Kassam v Hazzard 22 as “completely untenable” because s 51(xxiiiA) is a limitation on Commonwealth, not State, legislative power and, moreover, “civil conscription” is directed to compulsive service in the provision of medical services, not their receipt.23 Although it appears that an application for special leave to appeal the NSW Court of Appeal’s decision has been filed in the High Court, special leave has not yet been granted and it is unknown to us on what grounds it is sought that the appeal proceed. Insofar as grounds 7(b) and 15, as well as ground 2, raise an issue concerning the TGA Act, the argument sought to be advanced is incomprehensible to us. As to grounds 7(d) and 7(e), it is sufficient to say that we do not consider that they are reasonably arguable.

[30] Finally, ground 16, as elaborated upon in oral submissions, contends that Mercy’s instruction for employees to provide evidence as to their vaccination status constituted an “objectionable term” under the FW Act and therefore, by virtue of s 356 of the FW Act, had no effect. As defined in s 12, an “objectionable term” is, relevantly, one that requires, has the effect of requiring, or purports to require or have the effect of requiring, or permits, has the effect of permitting, or purports to permit or have the effect of permitting, a contravention of Pt 3-1 of the FW Act. Ms Roman did not identify what provision of Pt 3-1 was relevantly engaged for the purpose of this definition by Mercy’s instruction beyond referring to ss 340, 341 and 345 as having been contravened. We do not follow this argument and cannot discern any merit in it.

[31] Because Ms Roman’s appeal raises no reasonably arguable contention of appealable error, we do not consider that it would be in the public interest to grant permission to appeal.

Conclusion

[32] Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.”

 

Roman v Mercy Hospitals Victoria Ltd (2022) FWCFB 112 delivered 23 June 2022 per Hatcher VP, Young DP and Lee C