Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059

Industrial Relations Commission New South Wales Medium Neutral Citation: Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 Hearing dates: 20 June 2022 Date of orders: 27 July 2022 Decision date: 27 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Application Dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health professionals — Nurses EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal Legislation Cited: Industrial Relations Act 1996 (NSW) Public Health Act 2020 (NSW) Health Services Act 1997 (NSW) Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 Category: Principal judgment Parties: Gareth Peck

Secretary, NSW Health in respect of the Hunter New England Local Health District Representation: Applicant: Mr G Peck Respondent: Mr M Byrne File Number(s): 2021/364539 Publication restriction: Nil

decision 1. This is an application by Gareth Peck for a determination, pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act), that his dismissal by the respondent was unfair. 2. At the time of his dismissal on 1 December 2021, Mr Peck was employed as a Registered Nurse (RN) at the Glen Innes District Hospital, within the Hunter New England Local Health District. Mr Peck had worked for the Hunter New England Local Health District as an RN since January 2014, largely but not exclusively at the Glen Innes District Hospital. 3. The respondent says that Mr Peck was dismissed because he was not vaccinated as required by: 1. Orders made by the Minister for Health and Medical Research, and therefore could not lawfully perform work for the respondent; and 2. A Determination made by the Secretary, NSW Health, and therefore could not be employed by the respondent. 1. Mr Peck objected to being vaccinated, contending that he was unfairly forced to choose between being vaccinated and keeping his job. 2. In his Application for Relief in Relation to Unfair Dismissal (Original Application), Mr Peck set out arguments that: 1. The Public Health Orders relied on by the respondent concerned health care workers being required to be vaccinated with an "approved COVID-19 vaccine", but all COVID-19 vaccines available in Australia are only provisionally approved; and 2. "… the covid19 vaccine does not stop an individual from contracting or passing on the virus", there was therefore no valid reason for his dismissal. 1. Mr Peck pressed for the primary remedy pursuant to s 89 of the IR Act, or for re-employment or monetary compensation in the alternative.