Fair Work Commssion upholds dismissal for “misconduct” for no covid vaccination

There have been numerous decisions of the Fair Work Commision in the unfair dismissal jurisdiction effectively upholding dismissals of employees who failed to submit to covid vaccinations when employers had adopted policies requiring vaccination as a condition of on-going ermployment. Most of these decisions have been based upon the concept that the employee was unable to meet the inherent requirements of the job. In the following extract from a recent such case the decision of Jetstar to dismiss an employee on the grounds of misconduct for failing to be vacinated was upheld.

“[172] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or
unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct
(including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or
conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to
assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been
warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in
the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FW Commission considers relevant.
[173] Section 387(a) requires the Commission to consider “whether there was a valid reason
for the dismissal related to the person’s capacity or conduct (including its effect on the safety
and welfare of other employees)”. A valid reason for dismissal is one that is “sound, defensible
or well founded” and not “capricious, fanciful, spiteful or prejudiced.”95 The reason for
dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,96
and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as
to what the employee is capable of doing or has done.97 The Commission does not stand in the
shoes of the employer and determine what the Commission would do if it was in the position
of the employer.98
However, where a dismissal relates to conduct of the employee, it is also
necessary to determine whether the matter was of sufficient gravity to constitute a sound,
defensible and well-founded (and therefore valid) reason for dismissal.99

[174] In finding that there was a valid reason for dismissal, the Commission is not limited to
the reason relied on by the employer.100 Nor is the employer limited to relying on the reason
given to the employee at the time of the dismissal to establish a valid reason for a dismissal
although this may have implications for the considerations in s. 387 going to procedural
fairness.
[175] It is well established that a refusal on the part of an employee to comply with a lawful
and reasonable direction, will generally constitute a valid reason for dismissal. The seminal
decision concerning the requirement of employees to follow their employer’s lawful and
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reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte
Halliday101 (Darling Island Stevedoring) in which Dixon J summarised the common law
position as follows:
“Naturally enough the award adopted the standard or test by which the common law determines the
lawfulness of a command or direction given by a master to a servant. If a command relates to the subject
matter of the employment and involves no illegality, the obligation of the servant to obey it depends at
common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall
within the scope of the contract of service and are reasonable.”
[176] I accept that there are cases where a policy lacks a rational basis or seeks to regulate a
matter that is trivial or is unreasonable so that non-compliance will not be a matter of sufficient
gravity to constitute a valid reason for dismissal for the purposes of the criterion in s. 387(a).
There will also be cases where a policy is unclear or ambiguous or not consistently applied so
that a breach may not constitute a valid reason for dismissal. However, as a Full Bench of the
Commission said in Briggs v AWH Pty Ltd102, the determination of whether an employer’s
direction is reasonable, does not involve an abstract or unconfined assessment as to the justice
or merit of the direction and it does not have to be demonstrated by the employer that the
direction issued was the most preferable or most appropriate course of action, or in accordance
with best practice or in the best interests of the parties.103
[177] The matters in s. 387 go to both substantive and procedural fairness and it is necessary
to weigh each of those matters in any given case, and decide whether on balance, a dismissal is
harsh, unjust or unreasonable. A dismissal may be:
Harsh – because of its consequences for the personal and economic situation of the
employee, or because it is disproportionate to the gravity of the misconduct;
Unjust – because the employee was not guilty of the misconduct on which the employer
acted; and/or
Unreasonable – because it was decided on inferences that could not reasonably have
been drawn from the material before the employer.104
Consideration
Whether direction to Applicant was lawful and reasonable
[178] The Applicant’s representative did not cross-examine witnesses for the Respondent who
gave evidence going to the rationale for, and implementation of, the Vaccination Policy. While
not mounting a direct attack on the Policy, the Applicant essentially contended that it was not
reasonable in relation to the way it dealt with the impact of various forms of leave on
compliance dates for vaccination. The Applicant also contended that the interaction between
the Policy and the Q&A document was unclear and that any non-compliance was due to
misunderstanding. These matters go to the reasonableness of the direction to comply with the
Vaccination Policy.
[179] In Mt Arthur Coal, a Full Bench of the Commission considered whether a direction that
employees comply with a Site Access Requirement (SAR) with similar terms to the Vaccination
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Policy, was lawful and reasonable. After considering cases relating to the duty of an employee
to follow a lawful and reasonable direction, the Full Bench identified the following principles:
• A lawful direction falls within the scope of the employee’s employment and includes
instructions incidental to that work;
• Employer directions which endanger an employee’s s life or health, or which the
employee reasonably believes will endanger his or her life or health are not lawful
orders unless the nature of the work is inherently dangerous and the employee has
contracted to undertake the risk;
• The order or direction must be lawful in the sense that the employee cannot be
instructed to do something that is unlawful;
• Employees are only obliged to comply with employer directions that are lawful and
reasonable;
• Reasonableness is a question of fact having regard to all the circumstances, and what
is reasonable may depend, among other things, on the nature of the particular
employment;105
• The employer is not required to demonstrate that the direction issued was the
preferable or most appropriate course of action or in accordance with best practice,
or in the interests of the parties.106
[180] The Full Bench in Mt Arthur Coal determined that that consultation obligations under
the WHS Act arose prior to the implementation of the SAR and under the model consultation
term in the relevant enterprise agreement, when a definite decision to implement the SAR was
made. The Consultation term in the relevant modern award in the present case is in substantially
the same terms and the Work Health and Safety Act 2011 (Qld) is in the same terms as the NSW
Act that was considered in Mt Arthur Coal. The Full Bench in that case went on to conclude
that:
[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires
consideration of all the circumstances, including the nature of the particular employment, the established
usages affecting the employment, the common practices that exist and the general provisions of any
instrument governing the relationship. In NSW, this would include consideration of obligations in the
WHS Act, which governs employment relationships in that jurisdiction. The assessment of
reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a
case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and
understandable basis for the direction.
[181] The conclusion of the Full Bench in Mt Arthur Coal was that the SAR was prima
facie “lawful” because:
• it fell within the scope of the employment, and
• there is nothing “illegal” or unlawful about becoming vaccinated.
[182] However, the Full Bench found that the SAR was not a reasonable direction because the
Company did not consult “as far as reasonably practicable” or in a “meaningful” way during
an assessment phase, when the Company announced that it was “actively assessing whether to
make vaccination a condition of entry to BHP worksites in Australia”. The consultation process
was deficient because:
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• the decision to implement the SAR as communicated to employees was not open for
reconsideration.
• employees were not given a reasonable opportunity to express their views and to
raise work health or safety issues, or to contribute to the decision-making process
relating to the introduction of the SAR;
• employees were not provided with information relating to the reasons, rationale and
data supporting the proposal;
• employees were not given a copy of the risk assessment or informed of the analysis
that informed that assessment; and
• in effect, employees were only asked to comment on the ultimate question: should
the Site Access Requirement be imposed?
[183] There were a range of considerations that otherwise weighed in favour of a finding that
the SAR was reasonable including that:
• It is directed at ensuring the health and safety of workers of the Mine.
• It has a logical and understandable basis.
• It is a reasonably proportionate response to the risk created by COVID-19.
• It was developed having regard to the circumstances at the Mine, including the fact
that Mine workers cannot work from home and come into contact with other
workers whilst at work.
• The timing for its commencement was determined by reference to circumstances
pertaining to NSW and the local area at the relevant time.
• It was only implemented after Mt Arthur spent a considerable amount of time
encouraging vaccination and setting up a vaccination hub for workers at the Mine.
[184] The Full Bench also observed that the content of a requirement to consult is determined
by context and that circumstances may dictate a quick response and a truncated consultation
process. 107
[185] Extrapolating the principles in Mt Arthur Coal in the present case, the Vaccination
Policy was intended to operate on a 20,000 strong workforce operating nationally and
internationally. The Full Bench was only considering the SAR in respect of one mine,
notwithstanding that it was implemented at all BHP Mines. While I do not underestimate the
devastation on businesses and employees caused by the COVID – 19 Pandemic, the impact on
the aviation sector was doubtless greater than on mining sector. Notwithstanding the raft of
safety measures implemented by Qantas to protect staff, customers and its business, it remains
the case that vaccination was, and is, the most effective control mechanism to manage risks
associated with COVID – 19 and the introduction of the Vaccination Policy by Qantas was an
entirely reasonable response to those risks.
[186] Before deciding to implement the Vaccination Policy, Qantas consulted with employees
and stakeholders and put in place a range of mechanisms to identify and address concerns about
the Policy in general, and vaccination in particular. In Tween, applying the decision of the Full
Bench in Mt Arthur Coal, Deputy President Easton concluded that the consultation undertaken
by Qantas prior to the making of the decision to implement the Vaccination Policy, was not
sufficient to meet its obligations under workplace health and safety legislation108, but that
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consultation after that date was appropriate and reasonable in the circumstances and sufficient
to meet the Company’s obligations in this regard. 109
[187] I accept that finding was not contested in the present case but note that it is arguable that
the circumstances faced by the Qantas Group at the point the Vaccination Policy was
contemplated did dictate a quick response in terms of risk to employees, contractors, customers
and to the viability of the business. That context also included a rapidly changing environment
in terms of the strain of the virus then prevalent, the likelihood that it would mutate, the
uncertainty about Government health directives and the fact that the Policy needed to operate
across a 20,000 strong workforce operating nationally and internationally.
[188] In any event, I am satisfied that any direction to an employee to comply with the Policy
was both lawful and reasonable in the context that then existed, and based on engagement,
consultation, education and support Qantas offered to its workforce. I also accept that the
provisions of the Policy distinguishing between employees absent on various forms of paid and
unpaid leave, were reasonable. In this regard, I accept Ms Burke’s evidence that the
circumstances of employees absent on forms of unpaid leave and paid parental leave were
substantively different, than those on leave without pay and paid parental leave, in terms of
managing risks associated with the potential for a myriad of compliance dates, if compliance
dates shifted based on the return of an employee from paid annual, long service and personal
leave, rather than on a common date. This would have created an unmanageable situation.
[189] Viewed in that context, this aspect of the Policy was logical. It self-evident that it is
easier to minimise multiple compliance dates in the context of employees being “stood down”
and “stood up” in a cohort, because of operational requirements, than it is to manage a situation
where multiple individual employees who are taking various forms of paid leave, have a range
of return dates and a corresponding range of compliance dates. In short, I accept that the way
the Policy dealt with employees on paid and unpaid leave, minimised the risk of unvaccinated
employees being inadvertently allowed to return to work.
[190] Further, I accept that in the environment in which it was then operating, Qantas needed
to have a workforce that it could rapidly deploy, with some certainty that external factors, such
as changes to State and international vaccine requirements, or an outbreak of the virus, would
not adversely impact its operations, and to minimise the risk to the health and safety of
employees and others, of contracting the virus. Against that imperative, the wishes of an
individual employee to become vaccinated when he or she returned from a period of paid leave,
are significantly outweighed, other than where the employee sought and was granted an
exemption, in accordance with the reasonable and appropriate process set out in the Policy.
[191] While the Policy requirements in relation to compliance dates for employees on paid
and unpaid leave could have been more clearly articulated in the Policy, I accept that
objectively, they were clear enough on the face of the Policy to have been reasonably
understood. In short, the Policy made clear that unless an exception was found in the Policy,
compliance dates were as set out in in clause 3.4. The fact that employees were on paid leave
was not stipulated as an exception to the requirement to be vaccinated. It is axiomatic that the
Compliance dates for employees on paid leave were the dates set out in the Policy – 15
November 2021 for ASIC red card holders and 31 March 2022 for all other employees.
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[192] The Policy clearly stipulated that it applied to Australia-based employees unless
otherwise specified and did not otherwise specify for employees absent on leave other than
employees stood down (clause 3.5) or on specified forms of leave without pay or paid or unpaid
parental leave at the compliance date. The Policy stated at 1.5 that it replaces and supersedes
all prior agreements and understandings for employees, including the COVID – 19 Support
Policy and the COVID – 19 Vaccination Employee Q&A unless expressly stated otherwise in
the Policy. The Policy did not expressly state otherwise in respect of compliance dates for
employees on any form of leave other than the forms of leave set out in clause 3.6 of the Policy.
[193] Further, I accept that any gaps or uncertainty in the operation of the Policy were filled
by the Q&A document and that if employees had any concerns in this regard, they were
provided with ample opportunity to clarify the Company’s position in relation to their
circumstances. The Q&A document made it clear at question 16, that if an employee was on
another form of leave (ie. other than SLWOP/LWOP or paid or unpaid parental leave) the
employee would need to comply with the requirements under the Policy by the compliance date
applicable to the employee – 15 November 2021 for employees in Category A and 31 March
2022 for employees in Category B, unless granted an exemption under the Policy. The Policy
and the Q&A document made the requirements of the Policy clear. While it might have been
preferable to have included a reference in the Policy to compliance dates not being extended by
absence on other forms of leave, this did not cause the Policy to be deficient so as to render it
unreasonable to direct employees to comply.
Whether there was a valid reason for the Applicant’s dismissal
[194] I am satisfied and find that the Applicant did not comply with a lawful and reasonable
direction given to her by the Respondent, and that there was no reasonable excuse for her failure
in this regard. I am also satisfied that the Applicant’s non-compliance was wilful and not
because she was mistaken about the meaning or the effect of the Vaccination Policy. This is
apparent when the timeline of events is considered. While there may be cases where failure to
comply with a direction is not a valid reason for dismissal because an employee reasonably
misunderstands the direction, this is not such a case. While I do not go so far as to say the
Applicant was dishonest in her evidence to the Commission, her attempts to establish that she
misunderstood the requirements of the Respondent’s vaccination Policy and that she did
everything possible to comply with that Policy, were completely unconvincing.
[195] The Applicant knew on 18 August 2020, when she received an email sent to all
employees by Qantas, that if the then proposed Vaccination Policy was introduced, she would
be required to comply by 15 November 2020, and this was confirmed on 20 September 2020.
While the Applicant applied for long service leave on 31 August 2021, the Applicant was not
notified that her leave had been approved until 19 October 2021. The Facebook Messenger
exchange with Mr Jenkins tendered by the Applicant does not state the period of leave that was
approved, but I accept her evidence that the leave was scheduled to commence on 15 November
2021 and conclude on 1 May 2022.
[196] On her own evidence, when the Applicant looked at the Vaccination Policy and the
Q&A document on or around 20 September 2021 it was not clear to her how the Policy applied
in circumstances where she may be on long service leave, assuming that her leave was
approved. It is also the case that both the Policy and the Q&A were document provided with
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the Policy and the covering email stated that information could be found in the documents
embedded in the email. The Q&A document, which the Applicant said that she looked at when
she read the Policy, states that its purpose is to assist employees to understand the requirements
of the Policy and that they are encouraged to read it in full because it contains comprehensive
information regarding the requirements of the Policy.
[197] Given that the Vaccination Policy is silent on long service leave and does not indicate
that the compliance date for an employee absent on such leave is extended past 15 November
2021, the Applicant cannot have reasonably believed when she read the Policy, that her
compliance date for vaccination was when she returned from long service leave. This is so,
even if the Applicant did not read the Q&A document, or if the Applicant read and disregarded
the Q&A document.
[198] The Applicant’s evidence about her understanding of the Policy and the Q&A
document, and the basis upon which she disregarded the Q&A document and did not accept
that it clarified the points she was confused about, was completely unconvincing. The
Applicant is obviously intelligent and articulate and held a relatively senior position with the
Respondent. The Applicant provided no reasonable explanation for her confusion and for
persisting with her interpretation of the Policy and the effect of the Q&A document. I was left
with the overwhelming impression that the Applicant did all she could to create an appearance
of confusion to cover her wilful refusal to comply with a lawful and reasonable direction given
by her employer.
[199] If the Applicant was genuinely confused about the application of the Policy to her
circumstances, she could have clarified the matter by reading the Q&A document and accepting
what it plainly stated or sought further clarification from a manager or HR as stated in the
Policy. Instead, the Applicant did nothing to clarify the position between 20 September when
she received the final version of the Policy and 19 October when her long service leave was
approved.
[200] Dr Prasad’s evidence was that the three vaccines approved for use by 15 November
2021, were Comirnaty (Pfizer), Vaxzevria (AstraZeneca) and Spikevax or Takeda (Moderna).
Pfizer and Moderna have a three-week recommended period between doses while the period
between doses for AstraZeneca is eight weeks. The Applicant could and should have become
vaccinated between 20 September and 19 October. During this period, even on her own
evidence, the Applicant knew that her compliance date was 15 November 2021, as her long
service leave had not been approved. Even after the approval of her leave, the Applicant took
no steps to seek advice or information about her circumstances or to become vaccinated.
Further, at the point the Applicant’s leave was approved she had put herself in a position
whereby if her leave was not approved, compliance by 15 November would have been difficult,
if not impossible, given the need to arrange to be vaccinated and the recommended periods
between doses for the various vaccines.
[201] The Applicant compounded her wilful non-compliance with the Policy by disregarding
what she was told by both her direct manager Mr Jenkins, and her next level up manager, Mr
O’Brien before she proceeded on long service leave. Even on her own version of the telephone
conversation with Mr Jenkins on 5 November 2021, the Applicant was informed that there
would be a difficulty being paid for her long service leave in circumstances where she was not
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vaccinated in accordance with the Policy. The Applicant also maintained that she was told by
Mr Jenkins that she would have to take SLWOP or LWOP. It should have been apparent to the
Applicant that this comment indicated that the 15 November compliance date applied to paid
long service leave but did not apply to SLWOP or LWOP as stated in the Policy. At very least,
it should have been apparent that there was an issue with the Applicant proceeding on long
service leave without being fully vaccinated by 15 November 2021, that date.
[202] There is also the matter of the Applicant’s email exchange with Mr Jenkins on 5
November 2021. If the Applicant was in doubt about the interaction between her long service
leave and her compliance date when she sent this email, she could not have doubted the position
after receiving Mr Jenkins’s response. The Applicant specifically stated in her email that she
could not find anywhere in the Policy that she was required to be vaccinated if she was on long
service leave and asserted that she would be compliant as long as she was vaccinated on her
return. The Applicant also asked for a reference as to where she could find the answer to this
query. Mr Jenkins’ response clarified this issue and set out question 16 and the answer to that
question from Q&A document. Rather than engage with the substantive issue of Mr Jenkins’
clear advice, that because the Applicant was not vaccinated she had not complied with the
Respondent’s direction, the Applicant raised the issue of the reference to long service leave
being in the Q&A document rather than the Policy. The Applicant also indicated that she would
follow Mr Jenkins’s suggestion and submit a temporary exception on the grounds that she
would not be in the workplace for the next six months. This concession indicates that the
Applicant accepted that she needed an exemption, and notwithstanding, the Applicant did not
seek one.
[203] Instead, in an email on 6 November 2021, the Applicant sought further clarification
from Mr O’Brien, her next level manager, about her situation. In that email the Applicant
sought clarity as to whether she would be paid for her long service leave in circumstances where
she was not vaccinated, and questioned why she needed to be vaccinated when she would be
absent from the workplace for six months. It is apparent from the questions in the Applicant’s
email to Mr O’Brien that she understands that she is required to be vaccinated by 15 November
2021, and is questioning why this is the case, and pointing out a deficiency she asserts in the
Policy because it does not refer to long service leave, sick leave or annual leave.
[204] Mr O’Brien’s response on 9 November 2021, confirmed that the Applicant’s long
service leave remained approved and stated Mr O’Brien’s understanding that the Applicant had
been informed that as a red ASIC holder she must comply with the Vaccination Policy by 15
November 2021. The only question in the Applicant’s next email to Mr O’Brien sent on 9
November 2021, is whether she would be paid her long service leave if she was not fully
vaccinated by 15 November. Mr O’Brien’s response on 11 November makes it clear that the
Applicant will be paid while on long service leave, regardless of her vaccination status and that
if she is not compliant with the 15 November date for vaccination, she should expect to receive
a call from Mr Jenkins to advise of the next steps in relation to her non-compliance. The email
also indicates that the next steps will involve a disciplinary process and that the Applicant can
opt to end her long service leave to participate or wait until the end of her long service leave.
The Applicant did not respond to that email.
[205] On her own evidence, the Applicant received “numerous calls” from Mr Jenkins which
she “declined”. Despite declining calls the Applicant was able to engage in a text message
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exchange with Mr Jenkins on 16 November. In that exchange, the Applicant denied that she
had been provided with options by Mr O’Brien, when this was not the case and then asserted –
incorrectly – that Mr O’Brien’s email did not state what the process would be. In my view, a
reasonable reading of these exchanges indicates wilful refusal by the Applicant to accept what
she has been clearly told and to create an appearance of confusion. While the Applicant may
have been entitled to refuse to have a telephone discussion with Mr Jenkins because she was on
long service leave, it is telling that she continued to engage via Facebook Messenger and
ignored Mr Jenkins’ view that she should call him so that he could answer her questions and
explain the position with respect to her long service leave.
[206] The Applicant’s evidence about her alleged lack of understanding about this series of
correspondence and communication was not credible. The Applicant had been informed, before
she commenced long service leave, by her manager Mr Jenkins and her next level Manager Mr
O’Brien, that:
• The answer to her question about the interaction between paid leave and her compliance
date was in the Q&A document which was twice copied and pasted into an email to her
with highlighting added to the relevant sections;
• Her long service leave would be paid despite the fact she was not vaccinated;
• Her compliance date for vaccination and uploading details remained 15 November 2021
despite the fact that she was on long service leave; and
• If the Applicant was not vaccinated by the 15 November 2021 she would be subject to
a disciplinary process and had the option to engage in that process immediately or on
her return from long service leave.
[207] While the Applicant did not receive specific and detailed answers to her questions about
the rationale for the different compliance dates for various forms of leave, that does not
invalidate the reason for dismissal. The Applicant was informed about the Policy and how it
affected her and if she wanted further information, the Applicant had ample opportunity to seek
that information before the start of her long service leave. The fact that the Applicant could not
have complied with the vaccination requirement between receiving the correspondence from
Mr Jenkins and Mr O’Brien, and the commencement of her long service leave, is not to the
point. It was the Applicant’s unreasonable refusal to accept the Policy and the Q&A document
that placed her in that position. The Applicant’s continued refusal to accept what she was told
by her managers was unreasonable. By 17 November 2021, when the Applicant received the
Non-compliance letter, her position was untenable.
[208] While the Applicant was entitled to wait until the end of her long service leave to
respond to that letter, her response was glib and made no attempt to explain her position, in
circumstances where she must have known that it was wrong. The Applicant knew prior to
commencing her long service leave, that she was considered by the Respondent to be noncompliant with its Vaccination Policy, regardless of her view about the matter. If the Applicant
was confused before commencing her leave (and I do not accept that she was) any
misapprehension about the serious position she was placing herself in, could not have existed
after 17 November 2021 when she received the Non-compliance letter. The fact that the
Applicant could not have complied with the Vaccination Policy at that point, does not alter the
fact that she had been informed about the requirements of the Policy well before the compliance
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date, and in sufficient time for her to make inquiries, and that the Applicant was warned that
her employment was in jeopardy shortly after the date for compliance had passed.
[209] Rather than acknowledging and accepting her non-compliance, or even attempting to
explain it, the Applicant simply stated that she would be vaccinated when she returned to the
workplace. That response indicates wilful non-compliance and a refusal to accept the
seriousness of her conduct. Although not relied on at the hearing, I also note that the Applicant
provided a further response to the Non-compliance letter via her then representative, Ms Tokaji.
The further response does not engage with the issues and otherwise raises irrelevant matters
that have been consistently dismissed by courts and tribunals in cases where employees have
been dismissed or been subjected to restrictions due to refusal to comply with vaccination
requirements.
[210] In any event, the Applicant did not comply with her undertaking to be vaccinated by the
time she returned to work. The Applicant’s long service leave ended on 1 May 2022, and on
17 November 2021, she had been informed, via the Non-compliance letter, not to attend work
at the conclusion of her leave, until further notice. That letter also informed the Applicant that
she would be paid for this period and must be available at the Company’s request. According
to the email from Mr Jenkins, the Applicant was scheduled to return to work on 4 May 2022.
The reason the Applicant could not return was because she was subject to a disciplinary process
due to her non-compliance with the Vaccination Policy. I do not accept that the Applicant can
have reasonably believed, based on the email correspondence from Mr Jenkins in relation to
her return to work, that her compliance date had been extended. Accordingly, the fact that the
Applicant was fully vaccinated by 10 May 2022, does not constitute compliance with the
Vaccination Policy and nor does it excuse her wilful failure to comply. Rather, becoming
vaccinated in her own time, is a further indication of that wilful failure.
[211] Mr Jenkins’ message to the Applicant that he would allow for the first run of the roster
“while these things are sorted out” did not alter the Applicant’s compliance date of 15
November 2021. The Applicant should have noted that Mr Jenkins was asking her as a friend
whether she would be compliant by 4 May 2022, and indicating that if she was not, the
Applicant should at least try to retain “good leaver status”. Regardless of the actual meaning
of Mr Jenkins’ comment, it was a clear message that if the Applicant was not vaccinated or did
not obtain an exemption by 4 May, her employment would probably end. Messages from work
colleagues about seeing the Applicant’s name on the roster, did not alter the situation she was
in. Quite simply, on 15 November and thereafter, the Applicant was non-compliant with the
Vaccination Policy. She was informed of her non-compliance before commencing long service
leave and on 17 November 2021, it was made clear to the Applicant that her non-compliance
would result in her being the subject of a disciplinary process with the potential for the
termination of her employment.
[212] The Applicant took no steps to comply with the Policy in a reasonable timeframe and
nor did she take steps to explain her non-compliance. In those circumstances, it was reasonable
for the Respondent to conclude that the Applicant’s failure to comply with the Policy was wilful
and accordingly, that failure was a valid reason for dismissal.”

Willoughby v Jetstar Airways Pty Ltd [2023] FWC 899 delivered 17 April 2023 per Asbury VP