Unfair dismissal and covid workplace mandates

Here are a number of passages from an unfair dismissal case dealing with a claim by an employee dismissed for not being vaccinated against covid 19.

“s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to her capacity or conduct

[14] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 4 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.5

[15] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. 6 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.7

[16] Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job), 8 and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.9

[17] The Respondent made the following written submissions on the issue of a “valid reason”:

“11. A reason for dismissal must be “sound, defensible or well-founded”. 10 The reason for the termination must be “defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason”.11

  1. The Respondent submits that the reasons were sound, defensible, well-founded, and justifiable on an objective analysis of the facts, as outlined in these submissions.
  2. Lawful and Reasonable Direction
  3. The Applicant and the Respondent were subject to the Public Health (Vaccination of Education and Care Workers) Orders 2021(the PHO).
  4. The PHO prohibited the Applicant from performing work at the premises of the Respondent without meeting the requirements of the PHO.
  5. The Applicant’s contract of employment dated 12 February 2020 (see Statement of S Ellis at SE-X) expressly requires that the Applicant comply with the lawful and reasonable directions of the Respondent. However, in the absence of any express term, the Respondent relied on an implied term requiring the Applicant to obey the lawful and reasonable directions of the Respondent. 12
  6. The Respondent’s direction for the Applicant to comply with the PHO was lawful and reasonable.
  7. The Respondent’s direction to meet the conditions of the PHO fell within the scope of the Applicant’s contract of employment, related to the subject matter of employment (being the ability to undertake work), and was not unlawful. 13The PHO provided a positive statement of law endorsing the direction provided to the Applicant and provided strict requirements for compliance. It was not material whether there was an alternative direction available to the Respondent.14
  8. Where a direction is lawful and reasonable, and an employee fails to follow that direction, then an employer is within its rights to terminate the employment. 15
  9. By failing to meet the requirements of cl. 5 of the PHO, the Applicant failed to comply with the Respondent’s direction to comply with the PHO.
  10. On the basis of the above, the reason for the Applicant’s dismissal was valid.
  11. Capacity to Perform Inherent Requirements
  12. The term ‘capacity’ refers to the employee’s ability to perform the work they have been employed to do. 16
  13. The Applicant could not undertake work at the Respondent’s premises without meeting the requirements of the PHO. Compliance with the PHO was necessary for the Applicant to have the legal capacity to perform her role and essential to her position as Teacher which required the provision of face-to-face teaching and learning. 17If the Applicant could not legally or practically perform her role, then she lacked capacity and the inherent requirements could not be met. Therefore, compliance with the PHO constituted an inherent requirement of the Applicant’s position as a Teacher.
  14. On the basis of the above, the reason for the Applicant’s dismissal was valid.” 18

[18] The Applicant made no clear submissions on the issue of a “valid reason”. Where the Applicant made submissions orally before me during the hearing on 23 February 2022 on the issue, they were often conflated with submissions on matters to be considered under s.387(b)-(h) of the Act. I set out the oral submissions made by the Applicant at the hearing (that might be said to engage with the issue of ‘valid reason’), as follows:

“CEDP falsely claims I was unwilling to comply with the public health order, which is entirely incorrect and misleading. I made it very clear that I am not against vaccination; I am considering all my options and availability of preferred vaccine type. I proposed various options for discussion and consideration, this ranged from: understanding CEDP’s position on accepting medical exemptions; for infection dates with COVID; choice of vaccine, for example Novavax; as well as undertaking rapid antigen testing.

I reject the implication that I was non-compliant. In effect it was CEDP who was non-compliant because it was unreasonable and unfair to refuse proper discussion, consultation and consideration of all options available for termination of employment. 19

CEDP had no grounds on which to terminate my employment. The only sensible and appropriate step it had open to it was to approve my long service leave, continue open dialogue for recommencement of face to face teaching until more information about the temporary public health order of 22 March expired.

It’s fanciful for CEDP to claim that reasonable steps were taken to find a solution that would allow me to maintain my employment. I was humiliated, subjected to adverse action, harassment and bullying, ending with the termination of my employment, which was premature, because it could not occur until after 22 March 2022 when the current public health order expires.

Even if the Commission find that CEDP had a valid reason for dismissal, based on its assertion of failure on my part to comply with a lawful and reasonable direction, which I reject, the termination still remains harsh. 20

On analysis of these relevant facts that I’ve presented, the termination is not defensible nor justifiable. It’s not enough for CEDP to say that they acted on the belief that the termination was for a valid reason, and not simply because it held the belief it had legal entitlement to terminate my employment.

It falls on CEDP to show that it had a valid reason related to facts of the matter even if in a situation where an employee’s capacity to perform the inherent requirements of the job is affected by the actions of a third party, as in this case New South Wales government, the employer still had an obligation to treat the employee fairly and with dignity. It didn’t have the right or the choice for unethical and immoral conduct.

It remained incumbent on CEDP to act in a fair and just manner, which they did not. CEDP did not consider the impact of the dismissal on my personal or economic situation. They deemed three days to be sufficient. And they didn’t take into account the continuing and ongoing challenges in this current environment.

CEDP, by its own admission via its website is still unable to fill over 100 vacant positions, with maths teachers being one of the most challenging to find suitable candidates. So CEDP chose to squander my 15 years of teaching experience when it terminated my employment, and ignored my loyal service, which was unblemished. This should have weighed in on my favour, and it must have been considered as a factor for the Commission in determining that this termination was harsh, unjust and unreasonable.

The vaccine now, wildly publicised by government and health officials, does not prevent vaccinated from infection or infecting others, and that was evidenced over the Christmas New Year period, and the unvaccinated are no more a threat or risk to the vaccinated than the vaccinated are to each other.

Queensland government recently announced that it will welcome unvaccinated teacher returning to work in the capacity of part-time and casual work. New South Wales is likely to follow in the same path. CEDP, choosing to terminate my employment, have denied me potential access to a livelihood. I understand that the college is struggling. Only two days ago I received a text message from a source at the school desperate to see my return to the school.

I stand by what I said in my response to the show cause. I remain capable and willing to work, and I still continue to investigate vaccine options. And I’m fully capable of performing the inherent requirements of my job, that is to teach mathematics. The termination of my employment was unreasonable and unfair…” 21

[19] I note that during cross-examination the Applicant stated that she currently has made no appointment to receive the Novavax (or other COVID-19) vaccine, and also had not yet made any decision to even receive the Novavax (or other COVID-19) vaccine. 22

[20] Ms Cini, on behalf of the Respondent, made the following oral closing submissions on the issue of ‘valid reason’:

“The public health order in respect to the vaccination of education and care workers was made in accordance with the Public Health Act on 23 September 2021, and it continues to operate to this day. There’s no indication of whether it will terminate next month or on a future date.

The PHO required that the applicant meet specified conditions in order to undertake her role as a teacher on site, and the respondent had an obligation to ensure compliance with those conditions, one of which being vaccination against COVID 19. On that basis the respondent issued a direction to all school-based employees to comply with the PHO requirement.

During term 4 staff were allowed to apply for alternative arrangements, and this was not an indefinite offer. Any application for alternative arrangements is at the discretion of the principal, and as an employee of the respondent, the principal would often exercise that discretion in consultation with CEDP central office.

The applicant failed to follow the respondent’s lawful and reasonable direction to comply with the PHO. Compliance with the requirements of the PHO also constituted an inherent requirement of her role. There were no means for the applicant to perform her contracted role of teacher without complying with the PHO. There were justifiable and sound reasons to terminate the applicant’s employment.” 23

Consideration – Valid Reason

[21] The reason for the Applicant’s dismissal, as proffered by the Respondent, is that the Applicant failed to comply with the PHO Requirement that persons performing “relevant work” at the Respondent’s workplace, in the Applicant’s position (as an “Education worker”), must have had 2 doses of a COVID-19 vaccine, or been issued with a medical contraindication certificate. 24 “Relevant work” is defined as “work at a government school or non-government school.”25 There is no dispute that the Applicant’s work is covered by the PHO Requirement, and I equally make this finding.

[22] The effect of the PHO Requirement was that, from 8 November 2021, the Applicant, as an unvaccinated person without a valid medical contraindication certificate, was unable to perform work on-site at the Respondent’s workplace (a non-government school), and was therefore unable to satisfy the requirements of her role as a teacher and “Education worker”. 26 A failure to meet the requirements of a Public Health Order, resulting in an inability to perform work at an employer’s workplace, has been found to be a valid reason for dismissal.27 Further, in Shepheard v Calvary Health Care trading as Little Company of Mary Health Care Limited28, Deputy President Saunders found that if an employer permitted an employee, who had not complied with a similar Public Health Order requirement to enter its workplace, the employer would itself be in breach of the PHO.29

[23] The Applicant in her written and oral submissions suggests that notwithstanding the PHO Requirement, the decision to dismiss the Applicant for non-compliance with the PHO Requirement was not a ‘valid reason’ for dismissal as the Respondent could have, or should have, devised its own alternative method to determine whether the Applicant was entering the workplace with COVID-19, e.g. via regular RAT testing. In my view, this suggestion misses the point. Regular RAT testing is not an option, or an alternative option, under the First or Second PHOs. Regular RAT testing is not a proposal that would result in compliance with PHO Requirement. 30

[24] As at the date of her dismissal, the Applicant had not complied with the applicable PHO Requirement. 31 Having regard to the evidence and submissions of the parties, I find that the reason for the Applicant’s dismissal, being non-compliance with the applicable PHO Requirement, was a valid reason on two separate grounds. In this regard, I find that:

  1. a)firstly, compliance with the PHO Requirement was an inherent requirement of the Applicant’s role at the Respondent. Her failure to comply with the PHO Requirement was a valid reason for her dismissal in that she was not able to satisfy the inherent requirements of her job; and
  2. b)secondly, the Respondent made reasonable and lawful directions to the Applicant to comply with the PHO Requirement. In failing to comply with the PHO Requirement, the Applicant breached those reasonable and lawful directions by the Respondent, which gave rise to a valid reason for her dismissal.

[25] My findings in the foregoing paragraph weigh against any finding that the Applicant’s dismissal was harsh, unjust, or unreasonable.

s.387(b) — Whether the Applicant was notified of the valid reason

[26] The evidence discloses that the Applicant was notified of the reasons for her dismissal. I therefore consider this criterion to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(c) — Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct

[27] The Applicant made the following written submissions relevant to s.387(c) of the Act:

“22. In the same method CEDP applied to the survey, it also applied to my dismissal from employment. The method of communication which was deceitful, caused me confusion, fear, panic, and humiliation. I felt belittled, a loss of pride, and shamed, especially, when without any warning, on December 8, 2021, I received a “Show Cause Letter” to which I was given 3 days to provide a response. I was not the only one who felt this way, many of my colleagues who also received the same Show Cause Letter, who filed for unfair dismissal, said they felt humiliated and were in shock.

  1. With each reading of the letter, I felt more belittled and devalued, even worse, because it felt they had already determined the outcome, and this was yet another fabrication, another fake attempt at showing due process. CEDP had no intention of treating my reply with respect and dignity, if it did, then CEDP would know that to provide a response to such a grave issue, to justify why my position should not be terminated, required more than 3 days.
  2. CEDP abandoned any obligation it had under the EA and Contract of Employment, by not giving me 7 days in which to reply. Feeling angry and very upset at this treatment, on the evening I received the Letter, I emailed Deborah and People and Culture asking for an extension of time.
  3. I did not receive a reply or even a courtesy acknowledgment that my email had been received. I spent the following morning, Thursday 9 December, 2021 constantly checking my emails waiting anxiously for a response. By lunchtime, I was so desperate and so upset at being ignored and receiving nothing from CEDP, I called Deborah.
  4. I was shocked and sickened to learn that she had received my email and that she had forwarded it to People and Culture, but she didn’t think for a moment to pay me the courtesy to simply acknowledge my email and provide me an update.
  5. The tone of that conversation was icy and unfriendly, vastly different to the one previously when she was fact collecting. She said words to the effect, “I have contacted them by phone and waited for their direction, there is nothing I can do to help”. She terminated the conversation abruptly and discouriously [sic]. The call lasted less than 2 minutes. I was angry at being dismissed as inconsequential, as if I was an intrusion.
  6. I could not understand why, if she prepared and issued the Show Cause Letter, could not grant me the extension.
  7. While I have good emotional strength and mental well being, and I am resilient, this situation started to take a toll on my well being and mental and emotional state. By approximately 7pm that evening I had not yet received correspondence regarding my request for an extension of time. I was upset and started to feel physically ill, I was nauseous, could not focus, and I had a migraine headache. The method and pressure CEDP exerted to deny me my right as an employee made me very unwell.
  8. If CEDP thought that 3 days was sufficient to provide a response to the Letter, I could not understand why it would take them 1 day to decide on an extension of time. This was silent but effective torture.
  9. Eventually, and less than 4 hours before my reply was due, on Friday December 10, 2021 at approximately 12:30pm, Steve Elise (CEDP People and Culture HR Advisor) called to interrogate me as to why I requested an extension of time. He was inconsiderate in his time, arrogant and dismissive. I was confused why he thought I had to justify my request to him beyond what I had said in my email. I reiterated my email and informed Elise that I felt that 3 days was an unreasonable time frame in which to respond to such a critical, personal and professional matter.
  10. He granted the extension of time only on the condition that I make myself available for communication, and correspondence with CEDP over the Christmas school holiday. I agreed and then received confirmation that the extension of time was granted, for a week.
  11. I received another call from Elise on Friday December 17, 2021 to remind me the response was due in approximately 2 hours. I acknowledged the due time and informed Elise that CEDP will receive my response before 4pm, which they did. Elise then proceeded to ask if I would be available at 5pm that same afternoon to participate in a conference with CEDP, so that it can deliver the outcome in response to the reply.” 32

[28] The Applicant made the following oral submissions with respect to s.387(c) of the Act:

“In Wadey v YMCA Canberra Moore J stated the following principal about the right of an employee to appropriately defend the allegations made by the employer, that is:

The opportunity to defend implies an opportunity might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct, when in substance a firm decision to terminate had already been made, which would be adhered to irrespective of anything the employee might say in his or her defence.

That in my opinion does not constitute an opportunity for defence. The process was engineered and grossly defective in procedural fairness and contravened section 170CG(3)(b) and (c) when CEDP commenced its campaign to terminate the employment of the unvaccinated.

The following chronology of events show how CEDP contravened that section when it terminated my employment: 8 December 2021 CEDP issued a template show cause letter, I refer your Honour to attachment A of my submitted application. CEDP threatened employment termination for abstaining from participation in medical treatment; the threat of termination of employment can’t be underestimated, it’s a matter of such significance that basic human dignity required that dismissal is conveyed personally, with arrangements for cross reference and availability of documentary confirmation.

The show cause process CEDP applied was void of human dignity. It was a fabrication designed to have us form a view that CEDP was providing procedural fairness, when it was simply going through the motions. It had one clear agenda in mind, it had no interest in treating responses received with value or respect. CEDP provided no copy of any explanation of the process it references in that show cause letter except to say that:

This is to inform you of the outcome of the show cause process.

A process only known to CEDP, which was not prepared to share. The vexatious nature of CEDP was exposed when it set a time limitation of three days to provide a response to that letter, followed by ghosting and gaslighting to a valid and reasonable request on my behalf for an extension of time, and request for information, documents and materials it proposed to rely on to determine the outcome.

Under section 387(c) of the Fair Work Act an employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made. It was incumbent on CEDP to provide a fair and reasonable consideration for retaining my employment, which spanned 15 years of service; instead, due process and natural justice were denied, as was the right to work, the right to take my long service leave, the right to access leave without pay, the right to take sabbatical to complete my Masters, which was on the initiative of CEDP.” 33

[29] The Respondent made the following written submissions with respect to s.387(c) of the Act:

“26. The Respondent took all reasonable steps to ensure procedural fairness and provide the Applicant with the opportunity to respond.

  1. On 8 December 2021 the Respondent issued a Show Cause Letter and invited the Applicant to respond in writing on 10 December 2021.
  2. The Respondent had no preconceived outcome and considered the Applicant’s response prior to making a decision.
  3. On 8 December 2021 the Applicant was issued an invitation to show cause as to why her employment should not be terminated. See Statement of S Ellis at SE-X.
  4. The Show Cause Letter initially afforded the Applicant two days to respond on the basis that there had been continued communications with the Applicant since at least 7 October 2021 regarding the requirements under the PHO. The Respondent submits that the Applicant was aware of the precise nature of the Respondent’s concern about her conduct and was given an adequate opportunity to respond. 34
  5. The only matter for the Applicant to respond to was in respect to her compliance with the PHO. The Applicant did not have a medical contraindication requiring the collection of evidence and her intention to comply with the PHO should have been known to her at the time and not require an extended period of time to respond to the Show Cause Letter.
  6. Notwithstanding, the Applicant requested an extension of time to 4 pm, 17 December 2021 and this was granted with the Respondent intending to book an outcome meeting in the week of 20 December 2021. This email contained specific instructions on the matters for the Applicant to respond to, being her current or pending vaccination status. See Statement of S Ellis at SE-11.
  7. On 17 December 2021 Mr. Ellis contacted the Applicant to confirm that she would provide a response to the Show Cause Letter by 4 pm that day. In this conversation, Mr. Ellis also requested that the Applicant be available for an outcome meeting at 5 pm that same day.
  8. The request to hold an outcome meeting that same day was made on the basis that the Respondent had dedicated full-time staff to review the Applicant’s Show Cause Response, the Show Cause Response was unlikely to require the Respondent to make further inquiries, and the 17 December 2021 was the last day of school term before holidays. On 8 December 2021 the Applicant had been notified of the specific matters that required her response, and these matters were confined to her current and pending vaccination status only. See Statement of S Ellis at SE-11.
  9. The Applicant declined the proposed 5 pm meeting so it was scheduled for the following week on 21 December 2021, at 2 pm. See Statement of S Ellis at paragraph 37.
  10. On 17 December 2021 the Applicant provided the Show Cause Response. See Statement of S Ellis at SE-12.
  11. The Applicant was provided with nine full days to respond to the Show Cause Letter.” 35

[30] The Respondent made the following oral closing submissions with respect to s.387(c) of the Act:

“The conversation between the applicant and Ms Scollard on 2 December 2021 demonstrates that the applicant was aware of the consequences of her noncompliance with the public health order. The actions that followed should have been of no surprise to the applicant.

The show cause letter of 8 December and the letter extending the period to show cause clearly outlined the matters for the applicant to respond to, and they were confined to her compliance or pending compliance with the PHO. The correspondence also outlined the consequences of noncompliance. And in accordance with Shepheard v Calvary Health [2022] outlining the consequences of noncompliance does not amount to a threat or coercion.” 36

Consideration – Opportunity to Respond

[31] In my view, the evidence discloses that the Applicant was notified of the proposed reason for her dismissal, given an adequate opportunity to respond (which she did), and was advised in no uncertain terms (prior to providing her response) of the consequences that would follow (i.e. dismissal) if her response was not considered satisfactory by the Respondent. I reject the submissions of the Applicant that the dismissal process was contrived, or that the Applicant’s dismissal was pre-determined. The simple facts are that the Applicant was asked why her employment should not be terminated for non-compliance with PHO Requirements. The reality always was that bar some proper reason as to why compliance was not required, her employment would be terminated. The Respondent’s position, and the likely outcome, could not have been any more clear. I therefore take this criterion to be a consideration that weighs against any finding that the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

[32] The evidence discloses that the Applicant was given the opportunity to have a support person present if she wished at the meeting on 21 December 2021. The Applicant makes no submissions to the contrary. I therefore take this criterion to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(e) — Whether the person had been warned about that unsatisfactory performance before the dismissal

[33] As the dismissal did not concern the Applicant’s performance, this is an irrelevant or neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(f) and (g) — The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 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

[34] The Respondent submits that the “size of the Respondent’s enterprise and the expertise of its human resources did not impact the decision to terminate the Applicant’s employment, or the process followed”. 37 The Applicant did not make any submissions on this criterion. I consider this criterion to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(f) — Any other matters that the Commission considers relevant

[35] Much of the Applicant’s case focussed upon matters that might best be categorised as “other matters”, in the general sense of “unfairness”, going to the processes that led up to her dismissal, and the reason for her dismissal. In particular, the Applicant submitted that the Respondent failed to consult, or engaged in a superficial and inadequate process of consultation, and that her dismissal was “premeditated”. The Applicant made the following relevant written submissions to this effect:

“10. CEDP’s decision to abruptly and unreasonably terminate my employment caused a knock on effect, not least of which was denying me the right to complete my studies and earn a Master’s Degree. I invested $2000.00 in study fees, and 14 years to Catholic education and Catholic teaching, I prided myself in saying I taught at a Catholic school.

  1. I have been left humiliated and sickened at the treatment I was subjected to by CEDP, and its cohort of individuals charged with the responsibility for the termination of my employment. The disrespect, rudeness, and hostile conduct levelled at me was hurtful and harmed my well being.
  2. I was treated without civility, and without decency. After more than 15 years in the Catholic School system, to which I gave devoted and loyal service, I expected to be treated with dignity and respect.
  3. At around the middle of November, 2021 CEDP commenced with what can now be described as a manipulated event to manage and influence skilfully, in an unfair manner, the fear and uncertainty many employees, including myself were experiencing. It capitalised on this to show it was meeting obligations to consult with employees before introducing a mandatory vaccine policy, presumably, pre-empting the lifting of
  4. Public Health Orders. CEDP misinformed and misled me when it wrote “CEDP has been notified that the PHO will be extended to 22 March 2022”. At that time PHO had not been extended.
  5. The fabricated nature and pretence to appear genuine in attempts to consult with employees is evidenced by CEDP’s actions when it circulated a staff sentiment survey on the 17 November 2021, and provided a very narrow window of 2 days to complete the survey which was set to conclude on the 19 November 2021.
  6. This approach prohibited approx 75% of staff, me included, from providing feedback. The right to participate in a workplace initiative was denied to me because I and others like me, were working remotely, already on LSL and had not yet been vaccinated. Of the 5386 who could participate 1436 completed the survey.
  7. On November 25, 2021 CEDP produced survey results, highlighting responses to the question “When asked, Would you feel safer if all staff were required to be fully vaccinated with an approved COVID-19 vaccine to work on site?” While the result showed 77.16% support of this view, CEDP failed to disclose that the results were based on approximately 26% of the staff who could complete the survey and that 74% were excluded from providing their view.
  8. While still on Long Service Leave, I emailed the People and Culture team on November 30, 2021 to advise that I could not access the survey to provide my feedback, which I was very keen to do. I believed at the time that CEDP was earnestly interested in the opinion of all its employees, and in that same email I conveyed my concerns regarding the proposed Vaccination Policy. I said that it was unreasonable to impose such a policy based on a minority view of 26% that had access and completed the survey. Needless to say, my concerns were ignored and I did not receive a reply to that email.
  9. CEDP took this as a job well done in consulting with its employees, regardless that it was a minority. It took the results of the minority as permission to misinform its employees about the results, which in a communication it states, “Given the concerns of staff about exposure to and transmission of COVID-19 at work and the clear support for vaccination, we are proposing to implement a COVID-19 Vaccination Policy that requires all CEDP staff to be vaccinated (unless they have a valid medical contraindication)”.
  10. This misinformation heightened my anxiety because I was accessing LSL and already feeling isolated and denigrated. It generated pressure and fear amongst many of my colleagues, with whom I had ongoing dialogue. They and I were conflicted, fearing the loss of our jobs. Many wanted to wait for the Novavax to be approved, and others like me, were contemplating participation in trials for the COVax-19 vaccine.
  11. I was interested to find out that CEDP recommenced its consultation with employees about mandatory vaccinations independent of PHOs, recently circulating correspondence, which I attach as Appendix B.

  1. It took me several days to comprehend what had occurred, I could not believe that after so many years of giving loyal service to CEDP, that they treated me with such contempt and scorn. They gave no warning and were not transparent about their intentions. In fact the approach taken was intentionally misleading.
  2. The Letter was signed by Deborah Scollard (Acting Principal). I was shocked and confused at the level of unpleasantness and harsh nature of the communication contained in that letter, especially as 5 days prior, Deborah called to discuss my intention for the remainder of the academic year. In that discussion she gave no hint of what to expect and that this letter was coming. Deborah showed compassion, she was friendly and inquired after my family and their health.
  3. After receiving the letter, I felt deceived and manipulated. That entire conversion was a pretence, used to hide the real purpose for that call, to give the appearance that the concern was real, but was nothing but fake and a fact finding mission for CEDP.
  4. I was transparent and open with her, I had no reason to believe she was not genuine and operating under the same ethical standards as I. We discussed various other things, among those was my mental health and that of my family.
  5. I told her that I would like to extend my LSL for the remainder of Term 4, which was based on various CEDP email communications to staff, giving a commitment that access to LSL was an option for those who could not resume on-site work. I had the right under my employment conditions and was entitled lawfully to be granted the taking of my LSL.
  6. I asked Deborah whether any discussion had occurred about planning strategies for a return to face-to-face teaching. She said that CEDP had not mentioned anything to her, which I thought was unusual given her position and that of CEDP who throughout the year directed we speak with our Principle if we were not vaccinated, to discuss working remotely or access LSL or unpaid leave.
  7. Towards the end of the conversation, I became emotional and voiced my concerns

that, despite my service to CEDP and Catholic education, I felt unsupported and let down by the Diocese. I said that it would be unprincipled and unChristian of CEDP to refuse my request for LSL and a return to work. Deborah continued to say that she was unaware of CEDP’s plans.

  1. I was left shaken and shocked, I was disturbed that such a request would even be contemplated and immediately challenged Elise. I said, “this sounds like CEDP has already determined the outcome, even before receiving, reading or considering my response”. He said words to the effect “CEDP has a team working on the show cause responses and you are simply asked to tell me if you can be available at 5pm or not”.

Elise grew more agitated, he was hostile and he belittled me, treating me with contempt.

  1. I told Elise that I was not available, and said, “how could you ask me to be available today, in an hour from submitting my reply and also, arrange a support person”. Elise immediately pushed to schedule a time for Monday December 20, 2021 or Tuesday December 21, 2021. I felt pressured, and I could not think, he did not allow me the time to consider my availability, so in a panic i agreed to Tuesday, between 1pm and 3pm.
  2. The conversation with Elise was unfriendly, it left me shaken and physiologically ill. I felt bullied. He humiliated and disrespected me, he was not civil, denied me dignity and consideration. He was very unkind. I felt sick that CEDP treated this situation without the professional response it deserved, I felt duped once again. I felt emotionally violated by Elise. I emailed Deborah and People and Culture to make a formal complaint regarding his conduct toward me. I am still waiting for a dignified response and acknowledgment to that complaint. Presumably, bullying and harassment of employees is justified by CEDP.
  3. At approximately 10:40am Tuesday 21 December 2021 I received an email and text message to notify me to expect a call at 2pm in respect of the Show Cause outcome, at which Laura Spoljaric (Specialist/Coordinator) and Rachel Schofield (HR Operations & Analytics Manager) would be participants.
  4. At the teleconference a pre-prepared termination letter was read out. It was not a discussion about my reply, it was simply to terminate my employment. Schofiels advised that the termination letter would be provided in full via email. I have it on good authority that the same pre-prepared letter was read out in full in every dismissal meeting conducted by CEDP.
  5. I was not permitted to speak or cross reference documentation and information, I could not even ask questions, and when I did, I was told that this was not the purpose of the call. When I enquired why CEDP had not fully considered my response, and that I deserved a proper hearing and right of reply after 15 years of faithful service, Schofield said, or words to the effect; ” this meeting is not for that purpose, but to simply advise you of the outcome”. Immediately after, at around 2:45pm, all access to CEDP emails and drives was terminated.
  6. The process was so uncaring, callous, so humiliating and impersonal. I don’t even know who these two people are, I had never met them. At the very least, I expected that my school Principal would be present.
  7. Deborah texted me on December 22, 2021 requesting the return of school equipment, and advised my personal items which remained at the school would be packed and returned to me by mode of collection from school or courier delivery. This was another violation of my trust and my loyalty to my employer. I was disgusted, it made me feel that the school laptop, and a few text books held greater value and importance than my 15 years of service. She did not inquire after my well being.
  8. I had grown familiar with the unprofessional, and disrespectful conduct of CEDP, and I was not at all surprised that she demanded the equipment be returned the same day or the following day. I responded and asked that a courier deliver my belongings and collect the school equipment.
  9. In my communication I advised Deborah I could not be available until the following week December 29, 2021. In the usual fashion I received no courtesy reply, no professionalism was shown to acknowledge my message and availability for the 29th.
  10. On the morning of December 29, 2021 I received another text message from Debrah to check whether I was available for the courier. I responded by explaining, because I did not get a response from her I made other commitments. She then advised a courier would be organised for the morning of January 17, 2022.
  11. I was denied natural justice and a right of reply, I was misled to believe that CEDP would take my reply seriously, instead the situation was a sham, and a cover, to make me think that CEDP was complying with the EA and with my Contract of Employment.
  12. CEDP deceived me and gave me false hope, leading me to believe they would give me a fair go. They did not. Their conduct and treatment of me was unfair and unreasonable, even if they thought that termination of my employment was warranted, that did not give CEDP the right to erode all my rights and afford me the opportunity to present my position and why I should not have my employment terminated.
  13. CEDP hid behind the “process” of natural justice and fairness, which it fabricated to validate the already predetermined decision.
  14. I was treated with cruelty, lack of compassion and without care. CEDP was unnecessarily unjust and harsh in its dealings with me since issuing the Show Cause Letter and immediately after it terminated my employment.” 38

[36] She also made the following additional oral submissions:

“The Commission must satisfy itself based on the merits of the application and the submissions whether the reasons CEDP gives are valid, reasonable and sound; moreover, to contemplate whether its position was defensible and founded, irrespective of whether it had genuine reason to enact the termination of my employment.

CEDP was capricious and malicious; it misled and misinformed; and engaged in destructive gaslighting, intentionally harmful and callous, because it had an agenda that it was required to expedite; it denied me the right of employment entitlements, and failed to comply with its own communication, which was to take effect from 11 October, in which options and alternatives to employment termination were provided.

This is supported by the respondent’s witness statement attachment SE6. In that it listed CEDP listed the following options for unvaccinated staff, and said that these were at the discretion of the principal: firstly to be vaccinated or provide a medical contraindication certificate; work remotely where possible and approved; use annual leave or long service leave or leave without pay.

The termination letter I received contradicts this when it informs that leave, including long service leave and leave without pay is at the discretion of CEDP. CEDP must satisfy the Commission the dismissal was procedurally fair, and the manner or process applied, and the investigation leading up to the termination decision was just, and premeditated.

Procedural fairness is providing the employee genuine opportunity to respond before any decision is to be taken to terminate employment, the principle of which is well-defined in Crozier v Palazzo Corporation Pty Ltd, and remains unchanged. The process was a sham, not only because it used a template termination letter, identical for every person whose employment was terminated, but because the decision was made even before the dismissal meeting had occurred.

CEDP misled me to believe that there was hope I might avert the termination of my employment if I provided sufficient cause why this should not be the case. CEDP were toying with me, going through the motions, knowing there was nothing I could do to avert a decision that had already been made. I refer your Honour to item 34 of my witness statement. 39

Even a well-orchestrated, calculated, and premeditated farce, no matter how well fabricated, is still a farce. CEDP used the pretext of a draft vaccination policy, which was neither lawful or reasonable; it rushed because it failed to consult with all its employees; and pre-empted public health orders after 22 March to terminate my employment.

CEDP failed to satisfy its consultation obligation under the Fair Work Act and Safety Act 2012, and the enterprise agreement, when it implemented its draft policy. It provided limited information; did not include the WHS committee; and only 25 per cent of the total number of employees could access the survey. CEDP prohibited 3950 of the 5386 employees from accessing the survey to provide CEDP feedback.

The Full Bench decision of the Fair Work Commission overturned BHP’s COVID-19 vaccine mandate at the Mount Arthur open cut coal mine. Not dissimilar to that case, CEDP fell short in meeting its obligations to consult with workers over this vaccine policy. CEDP was not in the position to rely on that policy as a basis and foundations terminate my employment. It had no authority to lean on that policy to say I was non-compliant with a reasonable and lawful directive which resulted in termination of employment, because that policy was neither reasonable nor lawful.

CEDP have circled back to the policy for what appears to be a more robust consultative approach. One can only presume CEDP either educated and informed itself about its obligations for compliance with the WHS Act and the relevant industrial instruments, or it was already informed but chose to disregard its obligation on the first occasion to see that the majority of employees might disagree with policy. This can only be described commonly as stacking the numbers in their favour. That’s all I have to say, your Honour, at the moment. 40

CEDP had not consulted with me or considered fully all alternate options. They ignored my long service leave option. CEDP has not provided me with material and documentation that I requested in my reply to the show cause letter. On balance the termination was hard(sic), unjust and unreasonable. It was evidence CEDP was a procedural fairness-free zone in relation to unvaccinated employees.

It was entitled to an opportunity to consider and respond to grounds of concern regarding continuing employment, even if in the end CEDP was not likely to be persuaded. A reasonable process would have been to allow me the opportunity to discuss and cross-reference my concerns, and for CEDP to listen to options put forward in my response letter as a method of possibly mitigating the outcome.

It might then have been prudent to approve my long service leave, which was denied to me, allowing me the right to complete my Masters studies while taking leave without pay, and waiting until the expiry of the public health order on March 22, before CEDP making its final decision.

The termination was unfair because CEDP had decided to terminate my employment prior to the show cause meeting and notification of dismissal. It made its decision purely and only in relation to the public health order, and not in relation to other strategies available to me.” 41

[37] Finally, I note that at the outset of the hearing on 23 February 2022, the Applicant sought to tender additional evidence (being evidence not filed in accordance with directions made). This evidence consisted of masked termination letters of other employees, as well as documents concerning a consultation process embarked upon by the Respondent in relation to a mandatory vaccination policy. The tender of these documents was refused by me on the basis that these documents would not assist the Commission to determine the outcome of this case. 42 In relation to the termination letters of other employees, the letters themselves do not disclose who the individuals were, or the circumstances that led to their dismissal. In relation to the mandatory vaccination policy, this policy was not in place at the time that the Applicant was dismissed, nor was it relied upon by the Respondent in dismissing the Applicant.

[38] The Respondent made the following submissions as to “other matters”:

“41. The Respondent gave genuine consideration to the issues raised by the Applicant in the Show Cause Response. The issues raised by the Applicant and the Respondent’s position are outlined accordingly:

41.1. Alleged promotion of vaccines by the Respondent.

41.1.1. A direction to comply with the PHO does not constitute the promotion of vaccines. Notwithstanding, the promotion of vaccines as a control to mitigate the transmission of COVID-19 was open to the Respondent at the time.

41.2. Requests for the Respondent to advise of its intended response to adverse reactions to any COVID-19 vaccine (‘vaccine injury’).

41.2.1. Such matters would be dealt with on a case-by-case basis and dealt with in accordance with the Respondent’s usual workers’ compensation practices and procedures.

41.3. The proposition that the Applicant had additional time to comply with the PHO.

41.3.1. The Applicant had misconstrued the PHO in her assertion that she had until 22 March 2022 (the expiration of the PHO) to consider her options in relation to receiving a vaccine, there is no such reference in the PHO.

41.5. The Respondent’s alleged failure to consult.

41.5.1. The Applicant raised the issue of there being no express term in her Contract of Employment or within the NSW and ACT Systemic Schools Enterprise Agreement 2017 (the EA) requiring her to undertake medical treatment. There is no requirement for either instrument to contain an express term in respect to the PHO, or COVID-19 vaccination. The Applicant had an obligation to comply with the PHO and the Respondent’s direction to comply with the PHO was lawful and reasonable.

41.5.2. The Applicant’s reliance on CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 was misconstrued. The Respondent had no obligation to consult with employees in respect to the introduction of the PHO in accordance with the Work, Health and Safety Act 2011(NSW) or the EA. In addition, there were no matters that the Respondent could reasonably or genuinely consult given that it had no discretion as to the application of the PHO. The survey referred to in the Show Cause Response was issued in relation to a proposed COVID-19 Vaccination Policy and not in relation to the PHO.

41.6. The Applicant’s request for a risk assessment.

41.6.1. The Respondent had no obligation to provide the Applicant with a risk assessment in relation to COVID-19 vaccine efficacy or safety.

41.7. The Applicant’s proposed alternative solutions.

41.7.1. Notably, the PHO remains in place and a period of approved leave, therefore, would not have changed the outcome for the Applicant. 43

41.7.2. The provision of rapid antigen testing was not an option open to the Respondent as it was not permitted within the scope of the PHO. If the Applicant attended and performed work at the Respondent’s premises as an unvaccinated worker, even with rapid antigen testing, this would have constituted a breach of the PHO and the Respondent would be liable for a financial penalty. 44

41.9. The Applicant’s claim that the Respondent had engaged in conduct amounting to adverse action.

41.9.1. The Respondent notified the Applicant of her obligations in accordance with the PHO and provided a lawful and reasonable direction to comply accordingly. The Respondent notified the Applicant of the consequences of non-compliance, as was appropriate. Notwithstanding, any matters related to adverse action are more appropriately dealt with in accordance with Part 3-1 of the Act. It was incumbent on the Respondent to explain the consequences of non- compliance with the PHO to the Applicant and this did not amount to adverse action. 45

  1. Matters relating to vaccine efficacy, safety, consultation, and other matters raised in the Show Cause Response were not relevant to the Respondent’s decision as to whether to terminate the employment. Although the Respondent read and considered all aspects of the Show Cause Response, the material components relevant to the decision to dismiss the employment were whether the Applicant would comply with the PHO and whether there were reasonable alternative arrangements available. See Statement of S Ellis at paragraph 40.
  2. Despite the matters raised in the Show Cause Response, the Applicant had not met the requirements of the PHO, was unable to undertake work at the Respondent’s premises, and provided no real indication of when she was likely to comply with the PHO, if at all.
  3. On 21 December 2021, after considering the matters outlined above, the Respondent terminated the Applicant’s employment.” 46

[39] The Respondent made the following oral closing submissions as to “other matters”:

“The respondent had commenced a consultation period in respect to a vaccination policy, and this consultation continues to this day. It was not a primary consideration in the decision to terminate the applicant’s employment and was not relevant.

At no time between 23 September and the date of termination did the applicant commit to meeting the requirements of the public health orders. It was therefore not possible for her to undertake her duties for the foreseeable future. The reaction of the applicant is outlined in details within her submissions; however, she has failed to demonstrate that there were any relevant facts that could have reasonably impacted the decision to terminate her employment. This decision was not pre-determined.

The matters outlined in her show cause response was simply insufficient to warrant the continuation of her employment. Although the show cause process was brief, the applicant was afforded an opportunity to respond. The applicant was aware of the confined matters to which she was required to respond, and those matters were not complex.

While termination was an outcome in the mind of the decision-maker, it was not the only outcome. Had the applicant provided information or evidence that could reasonably impact the mind of the decision-maker, other outcomes could be considered and provided accordingly.

The applicant’s performance and tenure and submission that she was still considering her options were considered by the respondent, but they were insufficient on the basis that she could not perform her role as teacher. The provision of leave was not possible as recruitment for temporary employees to cover her position would have been met with serious challenge due to the ongoing shortages of maths teachers.” 47

Consideration – Other matters

[40] The Applicant says that it would have been both “sensible and appropriate” for the Respondent, rather than dismiss her on 21 December 2021, to have approved for her to take further long service or other (including unpaid) leave until the “temporary” PHO Requirements expired or otherwise ceased to have effect. I reject that such an approach was sensible, 48 appropriate or required. The evidence is that the Respondent required the Applicant to return to work on-site in early 2022, having already granted the Applicant a period of long service leave on half pay. The evidence does not disclose that the Respondent was in a position to reasonably allow for the Applicant to “wait out” the PHO Requirements via the taking of leave.49 Indeed, the Second PHO has now been replaced by the Public Health (Covid-19 Vaccination of Education and Care Workers) Order 2022 [NSW] (dated 10 March 2022), which has effect until at least 13 May 2022, and is in essentially exactly the same terms of the First PHO and the Second PHO.

[41] Having considered the evidence and submissions of the parties, I do not consider that any of the “other matters” raised by the Applicant weigh in favour of a finding that her dismissal was harsh, unjust or unreasonable. I treat each of the “other matters” raised by the Applicant in these proceedings as neutral considerations.

Conclusion

[42] Having considered each of the matters specified under s.387 of the Act individually, 50 I am not satisfied that the dismissal of the Applicant was, in all of the circumstances, harsh, unjust, or unreasonable. Further, none of the criteria I am required to take into account weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable, whilst two of the criteria weigh against any such finding. The Applicant’s Application is therefore dismissed, and an order to this effect will be issued contemporaneously with this decision.”

Shah v Catholic Education Office Parramatta Diocese (Cedp) (2022) FWC 443 delivered 29 March 2022 per Boyce DP