Unfair dismissal, covid mandates and the Privacy Act

 

It has been regularly argued by former employees in unfair dismissal cases in the Fair Work Commission, arising from dismissals when employees have not been vaccinated against covid9,  that one of the reasons that such mandates are unlawful (and that dismissals based upon them are therefore unfair) is that they contravene the Commonwealth Privacy Act. This extract from a decision in such a recent  case sets out how the Fair Work Commission has routinely dealt with the argument.

“Mr Smith contends that New Horizon failed to take any steps or perform any risk assessments, in breach of the Work Health and Safety Act, to ensure that COVID-19 vaccines were safe for its employees. This argument is misconceived. New Horizons was legally obliged to comply with the Public Health Orders. It was the Public Health Orders that required Ms Cogger to be vaccinated against COVID-19, by taking a “vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19”. 43

[67] Ms Cogger contends that “demanding with threat and menace to produce personal medical information to prove directions were undertaken … contravenes the Privacy Act 1988.” 44 Arguments concerning the interaction between the Privacy Act and other similar COVID-19 related public health orders were considered by Beech-Jones CJ (common law) in Kassam.13 His Honour rejected the contention that the public health orders under consideration in that case were invalid because they 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

[68] Ms Cogger relies on s 94H of the Privacy Act as part of her contention that she had a reasonable excuse not to comply with the Public Health Orders. Section 94H of the Privacy Act deals with offences concerning requiring another person to download a COVIDSafe app to a communication device, having a COVIDSafe app in operation on a communication device or consenting to uploading COVID app data from a communication device to the National COVIDSafe Data Store, or taking action against another person because they have not done any of those things. The evidence adduced in these proceedings does not suggest any breach of s 94H of the Privacy Act.

[69] Ms Cogger did not address any of the privacy principles under the Privacy Act in her written or oral submissions. For completeness and because Ms Cogger was not legally represented, I will address privacy principles 3 and 6. Privacy principle 6 provides that an entity must not use or disclose information for another purpose unless the individual has consented. There is no suggestion that New Horizons used or disclosed any information provided by Ms Cogger for a secondary purpose. Ms Cogger elected not to provide any relevant medical or other information to New Horizons.

[70] Privacy principle 3 requires an APP entity not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. There is no evidence to suggest that New Horizons collected any sensitive information from Ms Cogger. In any event, 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, clause 7 of Public Health Order No 1 and clause 11 of Public Health Order No 2, both of which were made under the PH Act, required or authorised the collection of medical information by employers about employees. Accordingly, sub-clause 3.4 of privacy principle 3 applied to Ms Cogger and New Horizons.

[71] Ms Cogger was not able to fulfil the requirements of her role as Support Coordinator from 9am on 25 October 2021 because she did not meet the requirements of the Public Health Orders. There were no alternative duties available for Ms Cogger to undertake. 45 As at 18 November 2021, there was nothing to suggest that the Public Health Orders would or were likely to be varied or rescinded such that Ms Cogger would be permitted to work in the disability sector at any time in the foreseeable future. Ms Cogger had months prior to her dismissal to consider whether she would be vaccinated against COVID-19. She gave no indication to New Horizons that she had any plan or intention to be vaccinated against COVID-19 at any time in the foreseeable future; the indications that were given by Ms Cogger were quite contrary to this. Moreover, if New Horizons had permitted Ms Cogger to continue to provide disability services at any time after 9am on 25 October 2021, it would have been in breach of the Public Health Orders and exposed to financial penalties. There was in effect a new regulatory requirement that attached to Ms Cogger’s employment.46 Ms Cogger was able to decide for herself whether or not to take the necessary steps to meet this requirement. She decided not to do so. For all these reasons, New Horizons had a sound, defensible and well founded reason to terminate Ms Cogger’s employment.

Lawful and reasonable direction reason

[72] In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. 47

[73] A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work. 48

[74] A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk. 49 Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.50

[75] The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations. 51 It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.52

[76] A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered. 53

[77] Mr Handley submits that Ms Cogger was lawfully and reasonably directed to carry out a handover of clients and return New Horizons’ property that was held in her possession multiple times, and that her failure to follow these directions constituted serious misconduct within the meaning of regulations 1.07(2) and (3)(c) of the Fair Work Regulations 2009 (Cth).

[78] Moreover, Mr Handley submits that the handover was required to ensure continuity of service to the clients of New Horizons, who were in need for the provision of critical, ongoing care and support. It is also submitted that the return of property was required urgently as the items were needed by other employees to deliver disability services to its clients.

[79] Mr Smith and Ms Cogger made oral submissions regarding the handover and return of equipment directions. Ms Cogger explained that she was on leave at the time direction to return the equipment was made and was not residing at her home, where the equipment remained, at this time. Ms Cogger submits that she never refused to return the equipment but had difficulty doing so as she was away at the time. Ms Cogger says that the equipment was collected and returned to New Horizons once she returned to her place of residence.

[80] Ms Cogger’s contract did not include an express term requiring her to comply with lawful and reasonable directions issued by New Horizons. I am satisfied, however, that an implied term to that effect formed part of Ms Cogger’s contract of employment with New Horizons. 54

[81] In the context of Ms Cogger’s impending period of leave from her employment with New Horizons, I am satisfied that the direction to complete a handover and return the IT equipment fell well within the scope of Ms Cogger’s employment with New Horizons. 55

[82] There is nothing illegal or unlawful about the request to complete a handover nor return the IT equipment via one of a multitude of options given to Ms Cogger to do so. 56 I am satisfied that both directions were lawful and reasonable in the circumstances.

[83] On 22 October 2021, Ms Cogger was first directed to complete a handover document, by 29 October 2021, in relation to the clients she was dealing with in her Support Coordinator role. 57 The same direction was repeated on 26 October 2021.58 Ms Cogger’s response to this direction was to “officially decline your current request”.59 Failure to comply with this direction is not excused by reason of the fact that Ms Cogger was shut out of her New Horizons’ compute system on 1 November 2021. Ms Cogger was required to comply with the direction by 29 October 2021. I do not consider that Ms Cogger has provided any reasonable explanation for her failure to comply with the direction to complete a handover document by 29 October 2021.

[84] On 22 October 2021, Ms Cogger was first directed to return her “IT equipment, phone and keys to the office … by COB Friday the 29th” of October 2021. 60 On 1 November 2021, another direction requiring Ms Cogger to return all New Horizons’ property, by 5pm on 2 November 2021, was issued to her in writing.61 Ms Cogger responded to this second request by stating that she was away on leave and would make arrangements for the collection of New Horizons’ property when she was “back in town next week”.62 I consider the fact that Ms Cogger was not at home when she was on leave for a period from 1 November 2021 provided her with a reasonable excuse not to comply with the direction issued to her on 1 November 2021 to return New Horizons’ property. However, the evidence does not reveal any reasonable explanation or excuse for Ms Cogger not to have complied with the first direction, issued to her on 22 October 2021, to return New Horizons’ property by the close of business on 29 October 2021.

[85] I am satisfied that Ms Cogger’s refusal to comply with the directions issued to her on 22 October 2021 to provide a handover document and return New Horizons’ property constituted serious breaches of her contractual obligation to comply with lawful and reasonable directions issued to her. The failure to provide a handover document was particularly serious in circumstances where some of the clients Ms Cogger provided services to were vulnerable and New Horizons reasonably required the handover information in order to continue to service those clients. 63 I am satisfied that Ms Cogger’s breach of her contractual obligation to comply with lawful and reasonable directions issued to her gave New Horizons a sound, defensible and well founded reason to terminate her employment.

Conclusion re valid reason

[86] For the reasons given, I am satisfied that New Horizons had valid reasons to terminate Ms Cogger’s employment.”

Extracts from Cogger v New Horizons Enterprises Limited (2022) FWC 1267 delivered 24 May 2022 per Saunders DP