First covid vaccination unfair dismissal case

In what I believe to be the very first clear cut and wholly unambiguous decision in an unfair dismissal case determined by the Fair Work Commission as to the rights of an employer to dismiss an employee who fails to comply with a public health order requiring an employee to be vaccinated against covid 19 in a workplace setting, a senior member of the Fair Work Commission has concluded in favour of the employer.

“Valid reason (s 387(a))

General principles

[26] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[27] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5

[28] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[29] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 8

Consideration re valid reason

[30] There is no dispute that St Joseph’s is a ‘residential aged care facility’ within the meaning of the Public Health Order. Accordingly, the Public Health Order applied to Ms Shepheard in relation to her employment with Calvary at St Joseph’s.

[31] Because Ms Shepheard did not provide Calvary with any evidence that she was vaccinated against COVID-19 or was unable, due to a medical contraindication, to be vaccinated against COVID-19, the effect of the Public Health Order was to prohibit Ms Shepheard from entering her workplace at St Joseph’s from 9am on 17 September 2021. It follows that Ms Shepheard was not able to fulfil the requirements of her role as a Care Service Employee from 9am on 17 September 2021. There were no alternative duties available for Ms Shepheard to undertake. Indeed, if Calvary had permitted Ms Shepheard to enter her workplace at St Joseph’s after 9am on 17 September 2021, it would have been in breach of the Public Health Order and its accreditation as an aged care provider may have been put at risk. For all these reasons, Calvary had a sound, defensible and well founded reason to terminate Ms Shepheard’s employment.

[32] Ms Shepheard contends that Calvary could have stood her down on unpaid leave until the Public Health Order expired. I do not consider that there would have been any real utility in standing Ms Shepheard down for an indefinite period in circumstances where even the absence of a public health order would not have altered Calvary’s obligation to take reasonable steps to ensure the health and safety of its employees, as well as the vulnerable residents of St Joseph’s. Calvary’s mandatory vaccination policy has been introduced to address those risks. I do not consider that there was, as at 15 September 2021, any realistic likelihood that Calvary would change its policy in the foreseeable future to no longer require its care staff to be vaccinated against COVID-19.

[33] Notwithstanding the arguments contained in Ms Shepheard’s written communications to Calvary in the period leading up to her dismissal, she made clear during the hearing that she is not arguing that the Public Health Order is, or was, unlawful or invalid. Even if Ms Shepheard had maintained those arguments, they would not have assisted her case on the question of valid reason. Once a public health order is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order unless or until it is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid. 9 The New South Wales Court of Appeal has found that the Public Health Order was not invalid.10

[34] One of Ms Shepheard’s main arguments concerning the fairness of her dismissal by Calvary is that she did not want to disclose private medical information to Calvary and the requirement that she do so was, so Ms Shepheard contends, a breach of the Privacy Act. I will consider these arguments as ‘other relevant matters’ under s 387(h) of the Act, but in my opinion they are not relevant to the question of whether there was a valid reason for Ms Shepheard’s dismissal related to her capacity or conduct. My reasoning for this conclusion is as follows. The Public Health Order required that Ms Shepheard be vaccinated against COVID-19 in order for her to enter her place of work from 9am on 17 September 2021. If Ms Shepheard wanted to be exempt from that requirement, the Public Health Order required that she present “to the operator of the residential aged care facility a certificate, in the form approved by the Chief Health Officer, issued by a medical practitioner, specifying the medical contraindication that makes the person unable to be vaccinated”. Accordingly, the disclosure of medical information to Calvary was required by the Public Health Order, in circumstances where an exemption was sought. Calvary had no option but to comply with the Public Health Order. It follows that when Calvary invited Ms Shepheard to provide relevant information to support her claim and Ms Shepheard elected not to provide any such information, Ms Shepheard had no capacity to undertake her role as a Care Support Employee in an aged care facility because she was prohibited from entering such a facility. In the absence of any suitable alternative duties, Calvary had a sound, defensible and well founded reason for Ms Shepheard’s dismissal related to her capacity.

[35] For the reasons given, I am satisfied that Calvary had a valid reason to terminate Ms Shepheard’s employment.

Notification of reason (s 387(b))

[36] Ms Shepheard was notified of the reasons for her dismissal in a ‘show cause’ letter and in the letter of termination.

Opportunity to respond (s 387(c))

[37] Ms Shepheard was given opportunities to respond, and did in fact respond, to the reason for her dismissal in her written communications to Calvary in the period leading up to her dismissal.

[38] Having regard to all the circumstances, I am satisfied that Ms Shepheard was given an opportunity to respond to the reason for dismissal related to her capacity.

Unreasonable refusal to allow a support person (s 387(d))

[39] Calvary did not meet with Ms Shepheard prior to her dismissal because she indicated that she did “not consent to face to face communication”.

[40] In all the circumstances, I am satisfied that there was not any unreasonable refusal by Calvary to allow Ms Shepheard to have a support person present to assist in any discussions relating to her dismissal.

Warnings of unsatisfactory performance (s 387(e))

[41] Ms Shepheard was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[42] Calvary is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Calvary’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Ms Shepheard’s dismissal.

Other relevant matters

[43] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[44] Ms Shepheard’s arguments concerning the various ways in which she alleged, in her written communications with Calvary prior to her dismissal, that the Public Health Order was unlawful and invalid have been disposed of by the New South Wales Court of Appeal. 11 In any event, the Commission does not have jurisdiction to determine the validity of a public health order.12 The Public Health Order was in force at the time of Ms Shepheard’s dismissal. It applied to her employment and meant that she was prohibited from entering her workplace from 9am on 17 September 2021.

[45] Ms Shepheard contends that she was dismissed because she exercised what she considered to be a right to privacy in relation to her medical information. I will deal with the Privacy Act issue shortly. I do not accept that Ms Shepheard was dismissed because she exercised any right to privacy in relation to her medical information. I accept Mr McLoughlin’s evidence that the reason for Ms Shepheard’s dismissal was, as set out in the termination letter, because she was “prohibited to work under the Public Health Order”. Calvary had no option but to comply with that order.

[46] Arguments concerning the interaction between the Privacy Act and the Public Health Order were considered by Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard13 His Honour rejected the contention that the Public Health Order was invalid because it violated a person’s right to privacy. His Honour also relevantly held (at [215]) as follows in relation to arguments made by the plaintiffs concerning the Privacy Act:

“Dr Harkess also referred to privacy principle 6 in Schedule 1 to the Privacy Act 1988 (Cth) which precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure (or subclauses 6.2 or 6.3 apply). Dr Harkess referred to the circumstance where a person submits to vaccination because of the effect of Order (No 2), the Aged Care Order or the Education Order and then obtains their vaccination evidence from the Australian Immunisation Register which is described below. He contended that, in those circumstances, there was no consent to the disclosure even though it is the (now) vaccinated person obtaining the information. This argument rises no higher than his contention about the impugned orders vitiating consent in relation to an alleged violation of the right to bodily integrity which has been addressed above and rejected.” 14

[47] Privacy principle 6 is irrelevant to the present case. It provides that an entity must not use or disclose information for another purpose unless the individual has consented. There is no suggestion that Calvary used or disclosed any information provided by Ms Shepheard for a secondary purpose. Ms Shepheard elected not to provide any relevant medical or other information to Calvary.

[48] Ms Shepheard also relies on the requirement in privacy principle 3 for an APP entity such as Calvary not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. Ms Shepheard says that she did not consent to the collection of any sensitive information by Calvary. However, there is an exception to the requirement of consent if sub-clause 3.4 applies in relation to the information. Sub-clause 3.4 applies if the collection of information is required or authorised by or under an Australian law, which is defined to include an “an Act of the Commonwealth or of a State or Territory”. In the present case, clauses 7 and 8 of the Public Health Order, made under the Public Health Act 2010 (NSW), required or authorised the collection of medical information by employers about employees. Accordingly, sub-clause 3.4 of privacy principle 3 applied to Calvary and Ms Shepheard.

[49] For the reasons given, I do not accept Ms Shepheard’s contention that Calvary breached the Privacy Act. In light of this conclusion, I do not need to address the balance of Calvary’s arguments in relation to the Privacy Act, including that the exemption in s 7B(3) is made out.

[50] Even if, contrary to my earlier conclusion, Calvary had been required by privacy principle 3 to obtain the consent of Ms Shepheard to the collection of sensitive information from her and it had not obtained such consent, that would not alter my overall conclusion that Ms Shepheard’s dismissal was not harsh, unjust or unreasonable. Such a breach of the Privacy Act would weigh in favour of a contention that the dismissal was unfair, but it must be balanced against other relevant considerations. In the present case, the Public Health Order was binding on both Ms Shepheard and Calvary and its effect was to prevent Ms Shepheard from attending her workplace to do her job. Ms Shepheard had no capacity to work in her job with Calvary from 9am on 17 September 2021. That situation was not likely to change in the foreseeable future after 17 September 2021. There was no other work available for Ms Shepheard with Calvary. It is not unfair for an employer to bring an employment relationship to an end when an employee, through no fault of the employer, has no capacity to work for the employer at the time of the dismissal and into the foreseeable future, and the employee is afforded procedural fairness before a decision is made to terminate the employment relationship.

[51] Ms Shepheard also contends that the way she was treated in the period leading up to her dismissal was disrespectful. She says that Calvary used pressure and coercion against her, including by threatening her with the loss of income and her career, breaching her confidentiality by placing her name on a list of persons who had not provided Calvary with information, sending her emails about providing evidence, sending her exemption forms for the disclosure of sensitive information, removing shifts from the roster after 17 September 2021 and keeping her rostered on 17 September 2021, not answering her questions in her correspondence, and creating a policy which required staff to disclose private medical information. I accept, as does Mr McLoughlin, that Ms Shepheard’s name should not have been included on a list in the staff room of employees who had not provided information to Calvary. This matter supports Ms Shepheard’s claim that her dismissal was harsh, unjust and unreasonable. Save for this matter, I do not accept the other claims made by Ms Shepheard that she was treated in a disrespectful manner or that Calvary used pressure, coercion, threats or intimidation against her. Calvary was authorised by the Public Health Order to ask employees to provide ‘vaccination evidence’ or whether they had any medical grounds for an exemption. I consider that Calvary asked its employees, including Ms Shepheard, about these matters in a respectful way. It was incumbent on Calvary to explain the consequences to employees of not complying with the Public Health Order. Providing such information did not constitute undue pressure, coercion, intimidation or a threat. At all times Ms Shepheard had a choice to be vaccinated or not, and a choice to provide medical information to Calvary or not, to support a claim for an exemption from the Public Health Order. Calvary explained to Ms Shepheard that the Public Health Order was binding. It was correct in that regard. There was no requirement for Calvary to go further and respond to every reason why Ms Shepheard was contending that the Public Health Order was, in her opinion, invalid and unlawful.

[52] Ms Shepheard’s removal from the roster in the period after 17 September 2021 is explained by the fact that she was not vaccinated against COVID-19, contrary to the requirements of the Public Health Order. Ms Shepheard’s name remained on the roster for 17 September 2021 because the roster was issued before the letter of termination was sent on 15 September 2021.

Conclusion

[53] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Calvary’s dismissal of Ms Shepheard was not harsh, unjust or unreasonable. Calvary had a valid reason for the dismissal and it afforded procedural fairness to Ms Shepheard prior to making a decision to bring her employment to an end. Calvary was required to comply with the Public Health Order. Ms Shepheard’s decision not to provide Calvary with any information about any medical condition or other relevant matter meant that Ms Shepheard was not exempt from the Public Health Order. The effect of the Public Health Order was that Ms Shepheard was unable to undertake her work at St Joseph’s from 9am on 17 September 2021. There were no alternative duties available for Ms Shepheard.

[54] I am satisfied that Calvary’s dismissal of Ms Shepheard was not unfair. The application is dismissed.”

Extract from Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited (2022) FWC 92 delivered 20 January 2022 per Saunders DP