Vaccinations and the workplace; the last word?

The following extracts from a very recent decision of the Fair Work Commission in an unfair dismissal case constitute an excellent analysis of the legal issues which have arisen about Australian employers’ rights to issue policies which require as a condition of employment vaccination against covid 19. In particular the decision deals with objections against ATAGI’s advice to governments about the efficacy of the vaccines and the right of employers to mandate covid vaccinations under their common law powers to issue lawful and reasonable instructions irrespective of government mandates for workplaces.

In a sense (subject to any appeal) this may well constitute the last word on these legal issues so to speak.

 

[1] This decision concerns applications for unfair dismissal remedies made by Mr Jovan Jovcic and Mr Filip Markovic under s 394 of the Fair Work Act 2009 (FW Act). The applicants were dismissed from their employment with Coopers Brewery Limited (Coopers) on 21 January 2022 on the grounds that they had failed to comply with the company’s COVID-19 vaccination policy (policy), which required employees to be vaccinated against COVID-19 as a condition of entry to the workplace. The applicants submit that Coopers did not have a valid reason to dismiss them because its direction that they comply with the policy was not reasonable. They contend that the policy did not serve its stated purpose because, contrary to the advice of the Australian Technical Advisory Group on Immunisation (ATAGI), on which Coopers relied in deciding to implement its policy, COVID-19 vaccinations do not prevent the transmission of the virus. In this regard, they rely on the expert evidence of Dr Nikolai Petrovsky. The applicants further contend that the direction to comply with the policy was unreasonable because they had objected to becoming vaccinated based on their Serbian Orthodox religious beliefs, and that it was unreasonable of Coopers not to grant them an exemption. The applicants contend that in all the circumstances their dismissals were unfair. They seek reinstatement.

[2] Coopers contends that the applicants failed to follow a lawful and reasonable direction to comply with the policy, which constituted a breach of their contracts of employment and a valid reason for dismissal. It contends that the requirement to comply with the policy was reasonable because the policy was directed at protecting the workplace health and safety of its employees and reducing threats to business continuity. It submits that the policy was consistent with ATAGI and government advice and was a reasonable measure in response to an unprecedented pandemic. It contends that the applicants’ requests for exemptions from the policy on religious grounds were fairly considered and reasonably refused, and that in all of the circumstances the dismissals were not unfair.

[3] Several features of these applications should be mentioned at the outset. First, unlike many unfair dismissal matters in which workers have been dismissed in connection with a refusal to become vaccinated against COVID-19, no state public health orders required the employer to prevent unvaccinated workers from attending the workplace. Rather, Coopers decided to introduce its own mandatory vaccination policy for reasons related to the risks posed by COVID-19. Secondly, although there have now been several decisions of the Commission dealing with cases where an employer has introduced a mandatory vaccination policy, most notably the decision of a five member Full Bench in CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (Mt Arthur Coal), those matters did not involve a challenge to the correctness of official advice concerning the efficacy of COVID-19 vaccinations. In the present applications, Mr Jovcic and Mr Markovic contend that ATAGI’s advice to the public concerning the effect of vaccines on transmission of the virus was wrong………………………………………………

Findings

[38] The applicants are not correct to say that the only scientific evidence before the Commission is the report of Dr Petrovsky. There is before the Commission evidence of the advice given to the general public by ATAGI. The relevant ATAGI weekly updates were attached to the witness statement of Mr Shearer, who gave evidence that Coopers relied upon them during the relevant periods. That advice was that vaccination prevented or reduced transmission of the virus and that all Australians over a certain age should become vaccinated. I find ATAGI’s advice to be compelling for the following reasons.

[39] First, it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence-based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted and indeed the applicants did not seek to impugn that status.

[40] Secondly, ATAGI has been continuously evaluating the epidemiological state of the country in respect of COVID-19 at its weekly meetings and updating the advice that it provides to the public on its website. Its advice has therefore remained current. I note that the formulation of ATAGI’s advice about the effect of vaccines on transmission of the virus changed over the relevant period. In updates from September to December 2021 ATAGI stated that vaccination was an intervention to ‘prevent infection, transmission and severe disease’. A statement on 24 December 2021 said that booster doses were ‘likely to increase protection against infection with the Omicron variant’. Then on 17 January 2022, an ATAGI update stated that vaccination ‘prevents serious disease and death, and reduces disease transmission’. One would expect of an expert advisory body that the content, formulation and emphasis of its advice would change in response to its ongoing assessment of the available evidence.

[41] The fact that there may be views in the scientific community that differ from those of ATAGI about the effect of vaccines on transmission of the virus is neither surprising nor a reason to doubt the reliability of ATAGI’s advice. Because its objective is to discover truth about the physical world, science invites scrutiny and welcomes both confirmation and contradiction, an outlook exemplified by the reputed instruction of Niels Bohr 1 to his students that every sentence he uttered should be understood not as an affirmation but as a question. Of course there will be different opinions, particularly in respect of subject matter that is relatively new. Until recently, there were no COVID-19 vaccines, nor had there ever been a vaccine against a coronavirus. One obvious benefit of an expert advisory body such as ATAGI is that it may evaluate all of the available evidence and competing hypotheses, draw evidentiary conclusions, and formulate sound and pragmatic advice so that society is not left in policy limbo when difficult scientific problems require practical responses.

[42] I am not persuaded by Dr Petrovsky’s evidence that ATAGI’s advice about the effect of vaccination on transmission of the virus was wrong. First, I prefer the evidence of the advice of a panel comprising numerous experts operating with government imprimatur to the evidence of a single expert witness.

[43] Secondly, it would appear that Dr Petrovsky does not entirely disagree with the ATAGI advice from January 2022 that vaccination can reduce disease transmission. In his expert report of January 2022, Dr Petrovsky stated that current vaccines do not prevent infection or transmission ‘even if they may in some cases modestly reduce it’ (paragraph 67). The applicants did not tender the expert report in the proceeding, but it was not disavowed and under s 590 of the FW Act the Commission may inform itself in relation to an application in such manner as it considers appropriate. Further, certain passages in Dr Petrovsky’s witness statement appear to accept that vaccines may have at least some role in limiting transmission of the virus. For example, Dr Petrovsky states that vaccination is ‘unlikely to significantly reduce infection or transmission of Omicron’ (paragraph 229) (emphasis added), and that current vaccines ‘do not have a significant impact on reducing community transmission of the virus’ (paragraph 242) (emphasis added).

[44] Thirdly, by contrast, elsewhere in his statement Dr Petrovsky states categorically that current vaccines ‘do not prevent Omicron infection’ (4(a)), that vaccination ‘could not provide a way out of the pandemic, given its inability to prevent infection and transmission’ (4(p)), and that the ‘only’ useful role of currently available vaccines is to reduce the risk of serious illness and ‘not to prevent the risk of infection or transmission which they have been proven not to do’ (at 66). There is a tension between the passages in Dr Petrovsky’s statement that appear not to exclude the possibility of some level of preventive effect and those that reject this possibility.

[45] Dr Petrovsky makes a number of critical statements about mandatory vaccination policies, including in connections outside his field of expertise. Some of these were struck out by agreement of the parties after Coopers objected to them. Dr Petrovsky said for example that a policy of mandatory workplace vaccination could ‘subject individual workers to discrimination’ (paragraph 4(h)). Dr Petrovsky also said that he found it ‘extraordinary that Coopers can dictate a mandatory treatment on its workers’ when government health authorities had not seen fit to do so (paragraph 81). This suggests that Dr Petrovsky does not consider that it would ever be appropriate for an employer to decide to require its workers to be vaccinated unless this was mandated by law. Further, Dr Petrovsky stated that mandating vaccinations ‘deprives both the individual and their doctor of the ability to make an unfettered decision’ as to whether the benefits of vaccination outweighed the risks for that individual and that this was a ‘fundamental interference in the doctor-patient relationship’ (paragraph 260). But the Coopers policy, like other employer vaccination policies that have come before the Commission, did not categorically mandate vaccination: it required employees to be vaccinated as a condition of entry to the workplace. Coopers made very clear that it remained employees’ personal decision whether to become vaccinated, but that the exercise of that choice could have consequences for their ongoing employment. This gave rise to economic pressure. But it did not deprive employees of the ability to consult their doctors about whether to get vaccinated or to decide this question for themselves.

[46] In my view, these and other statements suggest that Dr Petrovsky has a personal point of view that mandatory vaccination policies are inappropriate. In his statement, Dr Petrovsky disclosed that his part-time employer, SA Health, had given vaccination directions to all staff, including him, in connection with vaccine mandates imposed by the South Australian government, and that he had sought but not been granted an exemption. Dr Petrovsky said that he is currently on long service leave from his clinical role with SA Health in order to focus on the development of another COVID-19 vaccine, which has been approved for use in Iran and in respect of which approvals are being sought in other countries. Dr Petrovsky stated that he believed that he had kept the professional opinions expressed in his statement separate from his personal experience with vaccine mandates. I accept that Dr Petrovsky’s science is not affected by this experience. But I consider that his personal view about vaccine mandates may have affected his evaluative conclusion that Coopers’ policy was ‘neither adequate, reasonable or appropriate to the stated purpose of improving workplace safety’. I also find it curious that this conclusion was reached without any reference to the six employees of Coopers who are known to be immunocompromised.

[47] The applicants sought a finding from the Commission that the dominant strain of COVID-19 in South Australia in December 2021 and January 2022 was the Omicron variant. The significance of this for the applicants’ case was principally connected to the use they sought to make of Dr Petrovsky’s statement, namely their contention that the advice of ATAGI concerning the effect of vaccinations on transmission of the virus was wrong. I do not accept this contention. In my view it is not necessary to make findings about precisely when Omicron became the dominant strain of the virus in South Australia, however it would appear, based on the ATAGI updates attached to Mr Shearer’s statement, that both the Delta and Omicron variants were circulating in December 2021, that by 24 December 2021 the Omicron variant had become dominant in some regions of Australia, and, according to the SA Health statement from 18 January 2022 attached to Mr Shearer’s statement, that Omicron had become the dominant strain as of January 2022. (The last-mentioned statement also said that vaccination reduced the likelihood of transmission.)

[48] The applicants asked that I make a finding that their refusal to become vaccinated was motivated by their religious beliefs. I find that this was indeed the case. I also find that the applicants had additional concerns about becoming vaccinated which they raised with the company. This does not detract from the genuineness of their religious objections. The applicants further submitted that these objections were connected to their understanding that COVID-19 vaccines were developed using cell lines from aborted foetuses. I accept that this is what the applicants believe but make no finding about whether this understanding is correct. I also accept that the church was opposed to the vaccines, but that it did not prohibit its members from becoming vaccinated. I return to these matters further below.

Consideration

[49] Section 396 of the FW Act requires that I decide four matters before considering the merits of the applications. I am satisfied of the following. First, the applications were made within the 21-day period required by s 394(2). Secondly, the applicants were protected from unfair dismissal. Thirdly, the dismissals were not cases of genuine redundancy. Fourthly, Coopers is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable. No jurisdictional objections are raised to the applications.

[50] In order for a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account particular matters in considering whether it is so satisfied.

Valid reason for dismissal (s 387(a))

[51] The Commission must consider whether there was a valid reason for dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense that it was a good or sufficient reason for dismissal, and also a substantiated reason. A valid reason is one that is sound, defensible and well-reasoned.

[52] Coopers contended that it had a valid reason to dismiss the applicants because they failed to follow a lawful and reasonable direction that they comply with the policy. The policy established a new condition of entry to the workplace, namely that employees be vaccinated against COVID-19 and that they produce evidence of their vaccination status. It was common ground in these proceedings that the new site entry requirement constituted a direction to the applicants to become vaccinated in order to enter the site and perform their jobs.

[53] The failure of an employee to follow a lawful and reasonable direction would provide an employer with a valid reason for dismissal for the purpose of s 387(a). A contract of employment contains an implied term that the employee will obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two distinct dimensions. One is that the direction must involve no illegality. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter requirement reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J). Whether a direction is reasonable is a question of fact to be determined having regard to all of the circumstances.

[54] In Mt Arthur Coal, the Full Bench considered whether the decision of an employer to introduce a site access requirement that employees be vaccinated was a lawful and reasonable direction. Like in the present matter, no public health orders required workers to be vaccinated. Although the decision dealt with a dispute arising under an enterprise agreement, rather than an unfair dismissal application, the decision in Mt Arthur Coal is relevant to the Commission’s consideration of the present matters in various respects. One of these is the analysis of the Full Bench of the authorities relating to the implied duty of an employee to obey lawful and reasonable directions found at [64] to [81]. I adopt this analysis.

Lawfulness of the direction

[55] Although the matter was not contested, it is necessary to determine whether in my opinion the direction given to the applicants was lawful. In my view it was. The direction was within the scope of the applicants’ contracts of employment because it was directed at protecting workplace health and safety and the continuity of business operations. The direction involved no illegality. The site access requirement did not require the applicants to act unlawfully. Further, as I explain below, I consider that Coopers complied with its legal obligations to consult with the applicants and other employees about the policy.

[56] First, in my view Coopers met its consultation obligations under clauses 2.2 and 2.3 of the 2018 Agreement. The company provided the applicants with ‘all relevant information’ about the proposed change, including its nature and the expected effects on employees (see clause 2.3(d)(1)(D)). Employees were provided with a copy of the draft policy document on 1 December 2021, under cover of a detailed email that explained the company’s purpose in proposing to introduce the policy and the risks at which the draft policy was directed. The email sought employees’ feedback on the draft policy and how best to manage COVID-19 risks. Employees were offered a number of methods by which to provide their feedback and were assured that their responses would be considered by the company. The context in which information was provided to employees during the consultation period was one in which the company had already corresponded with the workforce about its consideration of the possibility of introducing a vaccination policy. Various employees provided feedback to the company, and Mr Shearer’s evidence was that this was taken into consideration. At least one change was made to the proposed arrangements, whereby the company would sight, rather than keep copies of vaccination certifications. The UWU and HSRs were involved in the consultation process.

[57] The risk assessment document was completed on 17 December 2021 and was given to the applicants on 29 December 2021, after the conclusion of the consultation period, following a request from Mr Jovcic for information about it. I do not consider that this was a document that had to be provided to the employees as part of the consultation process. The requirement to provide all relevant information does not mean that every conceivably relevant document or dataset must be provided. Moreover, relevant information is required to be provided for the purposes of discussion about the proposed change (see clause 2.3(d)). Practical information that is easy to understand may be more conducive to meaningful discussion (whether oral or by correspondence) than documents containing primary data. I note in this regard that the Work Health and Safety Consultation, Cooperation and Coordination Code of Practice, developed by Safe Work SA, states that relevant information should be presented in a way that can be easily understood by workers. The key risks flagged by the company in its message to employees on 1 December 2021 at the start of the consultation process remained core elements of the final risk assessment document. The draft policy itself also referred to key risks, including both workplace health and safety as well as business continuity risks, and explained that government health advice had shown that vaccination against COVID-19 was the best way to protect employees and other persons. Based on the evidence of Mr Shearer, I consider that Coopers provided employees with all relevant information and gave prompt and genuine consideration to issues raised by employees about the proposed change.

[58] I also consider that Coopers complied with s 47 of the WHS Act, which requires the company to consult, so far as is reasonably practicable, with workers likely to be directly affected by a matter relating to workplace health and safety. The company gave workers the relevant information, provided them with a substantial opportunity to express their views and raise relevant issues, took those matters into account, and then advised employees of the final decision. There may be a wide variety of ways in which a person can consult ‘so far as is reasonably practicable’ about matters relating to workplace health and safety. A person would not fail to meet that requirement simply because there may be different steps that might practicably have been taken. An overall assessment is required. In my view, the evidence of Mr Shearer establishes that Coopers consulted with employees about the proposed policy as far as was reasonably practicable.

Reasonableness of the direction

[59] Before addressing the parties’ contentions about the reasonableness of the direction given to the applicants, it is useful to cite the following two important passages from the decision of the Full Bench in the Mt Arthur Coal case. The first concerns the question of what must be established to show that a direction given by an employer to an employee is reasonable:

“[77] It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits:

‘In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer’s power of direction there is an area of ‘decisional freedom’ within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called ‘managerial prerogative’. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.’”

[60] The second passage concerns the approach that should be taken to the consideration of the reasonableness of a direction:

“[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.”

[61] The applicants raised two principal arguments as to why the direction was unreasonable, one based on science, the other on religion.

The effect of vaccination on transmission of the virus

[62] The applicants said that Coopers’ direction that they comply with the policy’s new site access requirement was unreasonable because the primary purpose of the vaccination policy could not be achieved. They submitted that Dr Petrovsky’s evidence showed that the policy was based on an incorrect factual premise, because vaccinations would not in fact prevent transmission of the virus and thereby make the workplace safer. Consistent with my findings above, I reject this contention. I do not accept that the policy was based on an incorrect factual premise.

[63] But even if I had reached a different conclusion about this matter, it would not have made any difference. The simple fact is that it was plainly reasonable for Coopers to rely on ATAGI’s advice in developing and implementing its policy. As I have explained above, ATAGI is an expert advisory body to government comprised of numerous experts from eminent scientific and medical institutions. Its advice to the general public at the relevant times was that vaccination prevented or reduced transmission of the virus and that all Australians above a certain age should become vaccinated.

[64] I reject the applicants’ contention that Coopers, being a large corporation, ought reasonably to have undertaken or commissioned its own scientific research before deciding to implement a mandatory vaccination policy. To expect Coopers to have navigated the scientific literature itself is unrealistic. And there was simply no need for Coopers to obtain expert advice. It already had such advice, provided by ATAGI, on which it reasonably relied.

[65] The applicants submitted that ATAGI had not advised employers to implement mandatory vaccination policies. This is correct. But that does not mean that Coopers’ decision to do so was unreasonable. What use should reasonably be made of ATAGI’s advice in formulating policies affecting particular workplaces was a matter for employers to consider in the light of all of the circumstances. That does not mean than any decision of an employer that relied on ATAGI advice and considered the surrounding circumstances would be reasonable. But as the Full Bench said in Mt Arthur Coal, there may be a range of options open to an employer within the bounds of reasonableness.

[66] Relying on a newspaper report from the Daily Mail dated 9 December 2021 that was tendered during the hearing, the applicants contended that ATAGI had sought to distance itself from mandatory vaccinations. I reject this contention. The article reported on ATAGI’s appearance before a parliamentary committee at which its representative stated that ATAGI believed in the benefits and safety of vaccinations but that how they were rolled out was a matter for state public health authorities.

[67] Whether an employer’s direction to an employee is reasonable depends on all of the relevant circumstances. One of those circumstances in the present case is that Coopers relied on the advice that was given to the general public by ATAGI. Connected to this consideration are other circumstances that support a conclusion that Coopers’ direction to the applicants was reasonable. First, at all relevant times, Australia was in the grip of an unprecedented pandemic. State governments had enacted public health orders requiring workers in many sectors to be vaccinated. Such orders had affected Coopers in other states. Consistent with ATAGI’s advice, these orders conveyed to the public the belief of government that vaccines were effective in limiting transmission of the virus. A further relevant circumstance was that the South Australian border had only recently reopened and that it was reasonable to anticipate a substantial increase in the spread of the virus in this State.

[68] Secondly, Coopers knew that six of its employees had identified themselves as immunocompromised. These workers were at heightened risk of severe illness and death from COVID-19, including from the Omicron variant. Even if, as Dr Petrovsky said at paragraph 229 of his statement, vaccinations were unlikely to ‘significantly reduce’ infection and transmission, it seems to me that even a modest reduction in the risk posed to the lives of the six immunocompromised workers at Coopers would reasonably weigh in favour of a decision to implement the policy. It was reasonable for the company to believe that its mandatory vaccination policy would further reduce the risks beyond the effect of the other COVID-19 measures it had put in place.

[69] Thirdly, Mr Shearer’s evidence was that the company was concerned that without the vaccination policy it would not be meeting its workplace health and safety obligations. Section 19(1) of the WHS Act requires that persons conducting a business or undertaking ‘ensure’ the health and safety of workers while they are at work in the business or undertaking, so far as is reasonably practicable. Section 19(3) also requires that such a person ‘ensure’, so far as is reasonably practicable, ‘the provision and maintenance of a work environment without risks to health and safety’. As the Full Bench noted in Mt Arthur Coal, it is not necessary, for the purpose of determining whether a direction was lawful and reasonable, that the direction be founded on a statutory source of power (at [233]). Further, a positive duty to take all reasonably practicable measures does not imply a negative duty not to take those measures that are not reasonably practicable. But the fact that an employer believes that it may be in breach of its workplace health and safety obligations if a particular measure is not taken is relevant to the question of whether a direction relating to that measure is reasonable.

[70] With regard to its general workforce, I doubt Coopers would have failed to meet its obligations under s 19 of the WHS Act if it had decided not to implement a mandatory vaccination policy (although this does not mean that it was unreasonable of the company to hold a concern to the contrary). However the position is different in relation to the six immunocompromised employees. One need only reflect on essential facts that existed at the time Coopers decided to implement the policy. Coopers knew that some of its employees were immunocompromised and therefore particularly susceptible to serious illness and death. It knew that ATAGI considered vaccinations to be effective against transmission. Coopers’ own understanding was that vaccination reduced the risk of transmission of the virus in the workplace. The company believed that it needed to protect these employees by reducing the chance of them contracting COVID-19. In these circumstances, had Coopers decided not to implement the policy, and a vulnerable employee had become seriously unwell or died, Coopers might have been exposed to liability for not taking all reasonably practicable measures to protect that employee’s workplace health and safety from a clearly identified risk. Of course, there would have been questions about causation, and about the level of risk that existed at the time. But even if that risk was not necessarily one of high likelihood, the hazard associated with that risk was a grave one. At the time, it was reasonable for Coopers to be concerned that not implementing the policy might be incompatible with its workplace health and safety obligations.

[71] Even putting to one side the effect of vaccines on transmission of the virus, the decision of Coopers to introduce the policy was still in my view within reasonable bounds. It was not disputed that vaccines are effective in preventing serious illness. Vaccination was therefore a measure that promoted the health and safety of workers because if they contracted the disease, they were not likely to become seriously ill. The applicants contended that neither they, nor most other workers at Coopers, fell into the categories of persons at particular risk, namely those over 65 and those with underlying health conditions. I accept that it is rare for persons outside these categories to become seriously ill, especially from the Omicron variant, but it remains a real possibility.

[72] Further, there was a clear business reason for introducing the policy. As Mr Shearer explained, the South Australian government’s isolation requirements for vaccinated persons who contracted the virus or who were close contacts were less restrictive than for those who were unvaccinated. An unvaccinated worker would be unable to work for longer in the event that they were exposed to the virus. Also, if workers became very sick, they would be absent from work for longer, which could adversely affect business operations.

The applicants’ religious beliefs

[73] The applicants’ second principal ground for contending that the company’s direction was not reasonable was that they had told Coopers that becoming vaccinated against COVID-19 was contrary to their religious beliefs, in particular because of their concern, and that of their church, that COVID-19 vaccines had been developed using cell lines from aborted foetuses. The applicants submitted that Mr Shearer did not regard their religious concerns as genuine and that instead of taking their concerns at face value he proceeded to form his own views about whether their objections to vaccinations were consistent with the policy of the church, but never put to them that their views were not genuine, thereby denying them procedural fairness. They further contended that when Mr Shearer made his recommendation to Dr Cooper that the applicants should be dismissed, he quoted selectively from the bishop’s letter, conveying an incorrect impression of the church’s position and demonstrating that he did not accept that the applicants’ objections were based on their religion. The applicants contended that the company’s consideration of their request for an exemption based on their religious views was incomplete, conducted in bad faith, and unfair.

[74] Mr Shearer said in his witness statement that, while it had appeared to him that the applicants’ religious beliefs were genuine, the position of the church as set out in the bishop’s letter did not appear to align with their views, because the bishop had noted that the church embraces all those who seek Christ, both vaccinated and unvaccinated. Mr Shearer also stated that his own research had indicated that some two million Serbian Orthodox persons had been vaccinated against COVID-19 by January 2022 (paragraph 55(p)). Mr Shearer went on to say in his witness statement that it was his view that Mr Jovcic (and presumably Mr Markovic) was ‘morally opposed to the COVID-19 vaccination, rather than having a genuine religious objection’ (paragraph 55(q)). However, this passage needs to be read in the context of the witness statement as a whole and also Mr Shearer’s evidence in cross-examination. As noted above, earlier in paragraph 55(p) Mr Shearer had stated that the applicants’ religious concerns were genuine. In cross-examination, Mr Shearer said that he had believed that the applicants were following their religious conscience, and that he had not been sceptical about their bona fides. I accept this evidence. In my assessment, Mr Shearer’s point was simply that it had appeared to him that the position of the church accommodated individual choice and that the applicants were exercising that choice in their own way. It is relevant to note that the termination letter signed by Dr Cooper expressly stated, appropriately in my view, that the company acknowledged that the applicants’ decision not to get vaccinated was based on their own circumstances and religious beliefs and that the company had the utmost respect for those beliefs.

[75] In its written submissions, Coopers contended that, strictly speaking, the applicants’ religious objections were nevertheless without substance because in fact vaccinations were not contrary to the Serbian Orthodox faith. It referred to the decision of the Supreme Court of New South Wales in Larter v Hazzard (2) [2021] NSWSC 1451 (Larter), in which the plaintiff had sought to challenge New South Wales public health orders requiring certain workers to be vaccinated, on the basis that the orders were legally unreasonable, in part because they discriminated against him on the grounds of his Catholic faith. The Court concluded that although the plaintiff’s religious beliefs were genuinely held, they appeared to depart from public statements made by the Catholic Church in response to the pandemic, to the effect that COVID-19 vaccines can be used in good conscience because of the grave danger posed by the virus, despite the fact that the vaccines may be derived from cell lines from aborted foetuses. Given this, the Court considered that the plaintiff was aptly described as a conscientious objector (at [64]). Coopers said that the same was the case here.

[76] In my view, the bishop’s letter indicates that the Serbian Orthodox Church is against its members becoming vaccinated with COVID-19 vaccines. The reason for the church’s view on this matter is that it considers that the vaccines were developed using cell lines from aborted foetuses. The bishop made clear that these concerns are not ‘subjective views’ but derive from the ‘fundamental positions and core beliefs of the Church’. Unlike the statements of the Catholic Church referred to in Larter, the bishop’s letter does not contain a clear statement that vaccines could be used in good conscience. On the other hand, the bishop did not say that the church forbids its members to become vaccinated or that congregants who decide to become vaccinated will be excluded from the church or disfavoured. The letter states that the church welcomes all those who seek Christ, both the vaccinated and the unvaccinated. In my view it is reasonable to infer that although the applicants’ church was against its members using COVID-19 vaccines, it allowed them to make their own decision about whether to become vaccinated.

[77] It is clear that the applicants cited both religious and non-religious objections to becoming vaccinated, including concerns about the safety of the vaccines. In his recommendation to Dr Cooper that the applicants be dismissed, Mr Shearer stated that ‘while the overarching matters raised linked to religious objection to vaccination’, a number of other comments had been made by the applicants ‘more generically opposed to vaccination’. In my view this is a fair summary of the position. There is no contradiction in this; the presence of non-religious concerns does not dilute the genuineness of the religious concerns held by the applicants. The company was correct to identify that the applicants held concerns of both kinds.

[78] I reject the applicants’ contention that Mr Shearer denied them procedural fairness by not putting to them his questions about their religious objections. Mr Shearer’s file note of his discussion with Mr Jovcic records that he did in fact raise with Mr Jovcic his observations about the bishop’s letter referred to above, and his research that had indicated that two million Serbian Orthodox persons had become vaccinated. The file note records that Mr Jovcic replied that he could perhaps write to the bishop about his case but that he did not consider this to be the right thing to do, and that if he had to choose between his work and his religion, then he would choose his religion. Mr Shearer’s file note records that he ‘commended Mr Jovcic for his strength of conviction’. This was a mark of respect for Mr Jovcic’s religious beliefs.

[79] Even if the applicants were correct in their contention that Mr Shearer did not believe that they had a genuine religious objection to becoming vaccinated, I do not consider that this would have made any difference to the company’s consideration of their request for an exemption. After noting in his recommendation to Dr Cooper that the applicants had overarching religious but also other reasons for objecting to vaccination, Mr Shearer stated that ‘either way’, the matters raised by the applicants did not ‘override’ the company’s responsibility to ‘maintain a safe working environment for all employees’. In my view, it is clear from this passage that Mr Shearer considered that the various matters raised by the applicants, irrespective of their nature, did not outweigh the imperative that Coopers maintain a safe working environment for all employees. The greater good of the collective was considered to outweigh the individual concerns of the applicants, whether religious in nature or otherwise.

[80] Coopers and Mr Shearer treated the applicants’ requests for exemptions based on their religious convictions with respect, and rightly so. Mr Shearer’s discussion with Mr Jovcic demonstrates that he took the applicants’ concerns seriously. Mr Shearer wanted to make sure that he had understood them. Coopers considered the matters that the applicants raised in this regard and determined that it would not grant an exemption. Clearly, the requirement of the company’s policy that employees become vaccinated presented the applicants with a dilemma. But I do not consider that it was unreasonable of the company not to grant an exemption from its policy in order to remove this dilemma in circumstances where the company reasonably considered that its policy served important health objectives that were in the best interests of its entire workforce and responded to the company’s concerns about business continuity. In particular, because Coopers reasonably believed that vaccination reduced the risk of transmission, vaccinated employees would be less likely to spread the disease at work, including to its six known immunocompromised workers.

[81] There will be occasions where the exigencies of work collide with an employee’s personal beliefs and require difficult decisions to be made. It would be unreasonable to require workers to choose between their beliefs and their work without good reason. But in this case, there were good reasons. The policy was in line with ATAGI and government advice that vaccinations reduced transmission. It was directed at the wellbeing of all workers on site, especially those known to be immunocompromised. It served the company’s legitimate interests in maintaining continuity of operations. The policy was responsive to identified risks. It was within reasonable bounds for the company to take the cautious approach that it did to the risk of transmission, to require compliance with the policy, and to decline to grant exemptions to the applicants.

Other matters bearing on the reasonableness of the direction

[82] I accept Mr Shearer’s evidence that the applicants’ roles could not be done from home and did not allow them to be isolated from other employees. Mr Jovcic’s role required him to run the day to day preparation of beer for packaging which involved close contact with other staff in the lager cellar and other areas. Mr Markovic worked as part of a team in the warehouse. It is unrealistic to think that these jobs could be done remotely. The applicants contended that they could have been redeployed on other work at the site, in areas where they would not have come into contact with other people. However, Mr Shearer said, and I accept, that he and Ms Martin consulted with relevant managers and considered whether there were other relevant roles that the applicants could perform in isolation or at home, but that there were none.

[83] Mr Jovcic said in his statement that he was not given an opportunity to use his long service, annual or sick leave as an alternative to complying with the policy. But Mr Jovcic did not claim to have made an application to the company to take leave. I do not consider that it was incumbent on Coopers to offer such alternatives in the absence of any request.

[84] Mr Markovic said that he had offered to wear a mask at work and to pay for RATs three times a week. I accept that he did so. But I also accept Mr Shearer’s evidence that these proposals were rejected because Coopers considered that there would remain risks to internal and external persons who might come into contact with Mr Markovic in the course of his duties. As Mr Shearer explained, although Coopers had implemented other measures in its COVID-19 management plan, including mask wearing, sanitising and social distancing, its risk assessment had indicated to the company that there was a need for a mandatory vaccination policy to ensure the safety of employees and others in the workplace. The measures proposed by Mr Markovic as an alternative were not considered to be sufficient. This conclusion was reasonably open to the company.

[85] Dr Petrovsky stated in his report that mandatory vaccination policies can cause harm by infringing on bodily autonomy and exposing people to the rare risks of serious side effects and death. But the applicants’ bodily integrity was not affected, because they did not become vaccinated against their will or at all. Further, the rare side effects referred to are so rare that they do not prevent ATAGI from generally recommending all Australians above a certain age to become vaccinated. Further, the administration of vaccinations is preceded by detailed questioning from a health practitioner concerning potential contraindications for the purpose of screening out persons who might have susceptibilities to the rare side-effects. Had the applicants sought to obtain a vaccination and been identified through screening questions as possessing medical contraindications, they could have sought a medical exemption under the Coopers policy.

[86] In my opinion, the following matters support a conclusion that the site access requirement in the company’s policy was reasonable: it was directed at ensuring the health and safety of workers, as well as business continuity; it had a logical and understandable basis; it was developed having regard to the particular circumstances of the company’s South Australian workplace; the timing for the commencement of the requirement was determined by reference to circumstances pertaining to the State at the relevant time, and in particular the opening of the South Australian border in late November 2021; and the policy was only implemented after the employer had encouraged workers to become vaccinated and engaged with workers about vaccination. In Mt Arthur Coal, the Full Bench found that considerations of this nature weighed in favour of a finding that the site access requirement in that case was reasonable (see [252]).

[87] Having regard to the advice of ATAGI upon which the company relied, and taking into account all of the circumstances, I consider that Coopers’ decision to introduce the policy was one which could reasonably be regarded at the time as proportionate to the relevant risks. ATAGI’s advice that vaccination prevented or reduced transmission of the virus would logically mean a reduced incidence of transmission of the virus at work, a reduction in illness, and (predominantly but not necessarily exclusively for those over 65 and the six immunocompromised employees) a reduction in the risk of workers developing serious illness or dying from COVID-19. It would also reduce business continuity risks for the reasons referred to above. Against this lay reasonably to be considered the impact of the policy on the applicants, including in relation to the conflict that existed between the requirements of the policy and their religious beliefs. This was a difficult issue but I do not consider that the manner in which the company resolved it was unreasonable.

[88] The fact that other employers might have weighed the various considerations differently in deciding whether to introduce a mandatory vaccination policy or to grant an exemption does not mean that Coopers’ own evaluation of these matters was unreasonable. As was said in Mt Arthur Coal, it is not necessary, in order to show that a direction was reasonable, to demonstrate that it was the preferable or most appropriate course of action to take. In my view the direction given by the company to the applicants was within the bounds of reasonableness in the circumstances that obtained at the relevant times.

Conclusion as to valid reason

[89] In my opinion, taking into account all of the circumstances, Coopers’ direction to the applicants to comply with the policy was both lawful and reasonable. There was a valid reason for the applicants’ dismissals because they failed to comply with this direction. There was also a second valid reason for dismissal because once the policy had been implemented, the applicants were no longer able to perform the inherent requirement of their jobs that they be able to enter the workplace. The existence of a valid reason for dismissal favours a conclusion that the dismissals were not unfair.

Other considerations in s 387

[90] The FW Act requires the Commission to take into account whether an employee was notified of the reason for dismissal and was afforded an opportunity to respond to any reason related to capacity or conduct (ss 387(b) and (c)). Both of these things occurred in this case. Coopers’ correspondence with the applicants notified them of the proposed reasons for dismissal and gave them a reasonable opportunity to respond.

[91] The Commission is required to consider whether an employer unreasonably refused to allow the employee to have a support person present to assist in discussions relating to the dismissal (s 387(d)). There is no suggestion in this case that there was any such refusal. In cases involving unsatisfactory performance, s 387(e) requires the Commission to consider whether the employee was warned about their performance, however this consideration is not relevant here. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). In my view these considerations do not raise the bar for larger employers like Coopers. Rather, they allow consideration to be taken of the special circumstances of smaller employers. These matters carry no weight in this case.

[92] The Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take note of the fact that both applicants had lengthy periods of good service with Coopers. Mr Jovcic had been employed for 16 years, Mr Markovic for 15 years. I also note that the applicants were very upset by their dismissals. Mr Jovcic said that he will never forget being told that his employment would be terminated. Mr Markovic said that he was speechless. It is also relevant to note that Mr Jovcic and Mr Markovic did not appear to consider that they would derive any benefit from the policy. But it is not necessary, for directions or policies to be reasonable, that they confer benefits on all those to whom they apply.

[93] I take into account the fact that the applicants held genuine religious grounds for not wanting to become vaccinated. I accept that an effect of the policy was to subject them to considerable mental and economic pressure (see Mt Arthur Coal at [222]), and that they effectively had to choose whether to become vaccinated or lose their jobs. This was a very difficult circumstance. However, taking all of the relevant considerations into account, I do not consider that it was harsh, unjust or unreasonable of Coopers to have required the applicants to comply with the policy or to have dismissed them when they declined to do so.

Conclusion

[94] Tensions between individual and collective interests have confronted policymakers, both public and private, throughout the COVID-19 pandemic, as they have no doubt done in other pandemics. The applicants were understandably aggrieved that their personal and religious interests were in effect overridden by the company’s decision to introduce the policy and to require their compliance with it. But this occurred because Coopers believed it to be for the greater good of the workforce and its business. The company had substantial and well-reasoned grounds for the decisions that it made. It is not the Commission’s role to determine whether the company’s direction to the applicants to comply with its policy was the most appropriate decision to make in the circumstances. Rather, it has been necessary to determine whether the direction fell within reasonable bounds. In my view it did.

[95] Clearly, this decision makes no general conclusion that it is reasonable for employers to introduce mandatory vaccination policies. Rather, it reflects the application of statutory considerations to facts and circumstances that existed at the Coopers brewery in Adelaide in late 2021 and early 2022. Having regard to the matters in s 387, I consider that Coopers’ dismissal of the applicants in January 2022 was not harsh, nor was it unjust, or unreasonable. The dismissals were not unfair. The applications are therefore dismissed.”

Jovcic and another v Coopers Brewery Limited (2022) FWC 1931 delivered 22 July 2022 per Colman DP