Industrial Relations Commission New South Wales Medium Neutral Citation: Southcombe v Commissioner of Police [2022] NSWIRComm 1112 Hearing dates: 24 November 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Appeal disallowed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Disciplinary action – Dismissal — Statutory rights – Police Legislation Cited: Industrial Relations Act 1996 Work Health and Safety Act 2011 Police Act 1990 Anti-Discrimination Act 1977 Privacy Act 1988 (Cth) Cases Cited: Marroun v State Transit Authority [2017] NSWCA 273 Category: Principal judgment Parties: Filippa Southcombe (applicant) Commissioner of Police (respondent) Representation: Counsel: M Watts (respondent) Solicitors: Kingston Reid (respondent) Other: F Southcombe (self-represented) File Number(s): 2022/103641 Publication restriction: Nil EX TEMPORE DECISION – REVISED FROM TRANSCRIPT 1. This is an application pursuant to Part 7 of Chapter 2 of the Industrial Relations Act 1996 (the Act). 2. This is, as the respondent submitted, an appeal in which the Commission conducts the proceeding de novo. That is, the Commission is itself making, or re-making, the decision as to whether the appellant's employment should be ended; which is different from an unfair dismissal application, where the Commission sits in judgment on a decision of the employer. 3. Section 100C(2) provides: "The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". 1. It provides no further guidance. 2. The respondent has taken the Commission to the New South Wales Court of Appeal decision in Marroun v State Transit Authority [2017] NSWCA 273 (Marroun) in which guidance as to the way the Commission should address the appeal is provided on several points. 3. Firstly, the Commission stands in the shoes of the employer and can decide only within the bounds of the powers open to the employer. 4. Secondly, the Commission should, where there is a specific complaint before the employer, address the complaint, not extraneous or additional material. 5. At [47] of Marroun, their Honours said: "It is correct to say that s 100C(2) confers powers on the Commission in relation to a disciplinary appeal. Those powers are not at large; they must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission is the decision of the public sector employer to take specific disciplinary action. … The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal." 1. Thirdly, in terms of guidance, the proceeding before the Commission is a fresh hearing, and in that respect I note that their Honours said: "29. It was common ground that the proceeding before the Commission was a fresh hearing of the allegation of misconduct/ … 34. The procedural powers, equivalent to those relied upon in Cadman are now found to be in Ch 4, Pt 5 'Procedures and Powers of the Commission'. Arguably persuasive support for the conclusion that an appeal under s 98(1) provides for a fresh hearing of the disciplinary matter is to be found in s 100G, which provides that the employer must present its case first at a hearing, and s 100C(3), which states … that even where there is a finding of procedural unfairness, the Commission is not required to allow the appeal solely on that basis and may 'proceed to decide the appeal on its merits'. … 48. … the function of the Tribunal hearing an appeal is as a 'fresh exercise of administrative power.' …" 1. Most importantly, at [35] their Honours said: "In colloquial terms, an appeal by way of fresh hearing means that the appellate body 'stands in the shoes of' the original decision maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be taken. Generally, it is assumed that the appellate body has the same powers as the original decision maker, no more and no fewer. One basis for that inference is the use of the term 'appeal' to describe what is in substance a fresh hearing." 1. I am therefore, in short, to determine if the applicant has engaged in an act of misconduct, and secondly, if so, whether that misconduct warranted dismissal after being given an opportunity to resign. 2. To do that, I will necessarily need to determine whether the vaccination mandate is a lawful and reasonable direction. 3. The appellant's case, taken from her outline of submissions, was that the direction was not lawful for a number of reasons. 1. The first of these is that an employer cannot, under the Work Health and Safety Act 2011, mandate a medical procedure and the Commissioner of Police is not a medical expert nor an authorised medical practitioner. 2. Secondly, the direction referred to the hierarchy of control set out in work health and safety laws; the hierarchy of controls is found in reg 36 of the Work Health and Safety Regulations 2017. The appellant submitted that the list of controls provided by reg 36 is exhaustive and ordered as a hierarchy; the list does not include medical interventions or medical procedures. 3. Thirdly, the direction was issued by a non-medical expert or a non-authorised medical practitioner and does not comply with other Commonwealth and State laws. 4. Fourthly, it was unlawful because s 47 of the Work Health and Safety Act requires employers to consult with workers on matters relating to work health and safety, and s 48 prescribes how this consultation is to take place. The appellant said that given the complete about face by New South Wales Police Force on vaccination mandates happened within the space of only two workdays, there was no time to allow for a full and proper risk assessment or consultation with workers, and certainly not with the appellant. I note that while there was something made of particular days being workdays, for the New South Wales Police Force it's hard not to regard every day as a workday. 5. Fifthly, the direction was said to be unlawful because the Work Health and Safety Act prohibits discriminatory conduct by an employer against an employee, and an employee who is dismissed for raising concerns about the safety implications of a vaccine is a victim of discriminatory conduct. It was said that the time pressure placed upon employees to receive a medical procedure within three weeks of making it mandatory clearly creates economic duress and amounts to coercion. 6. Sixthly, the respondent argued that they had acted in accordance with the Police Act 1990 and the Police Regulations, however the appellant submitted that these frameworks only deal with the administrative functions, structure and disciplinary procedures for the New South Wales Police Force and the Police Act and Police Regulations do not deal with either the implementation of lawful and reasonable directions, nor the mandating of medical procedures of any kind. 7. Seventh, it was submitted that the direction is not lawful because it does not comply with the federal Privacy Act. 8. Lastly, number eight, the direction was unlawful because it did not comply with the Anti-Discrimination Act 1977, with both State and Federal Acts referenced. The appellant submitted that the New South Wales Police Force employees who did not meet the requirement of medical contraindication, and who were unwilling or unable to receive a COVID vaccination, were treated differently to vaccinated staff in that their employment was terminated. 1. The applicant then set out a number of reasons why she submitted that the direction was unreasonable. 1. The first of these was the about face from Friday 3 September to Tuesday 7 December when the position changed from strongly recommended vaccination to mandated vaccination. 2. Secondly, the direction was not reasonable because it did not allow sufficient time for all unvaccinated employees to fully research the vaccine and consider their own personal health circumstances. 3. Thirdly, it was unreasonable because COVID 19 vaccines were only provisionally approved for use in Australia, and accordingly still part of a clinical trial. 1. The respondent's submissions are summarized, in my view, best in the respondent's submissions in reply, and they responded to each of the matters set out by the applicant in this fashion. 1. Firstly, responding to the submission that employers cannot mandate a medical procedure under the Work Health and Safety Act, the respondent accepted that was true on its face. But the respondent submitted that it did not force anyone to get vaccinated against COVID 19, as is apparent from the appellant's non-compliance with the direction. The respondent said that the appellant exercised the choice that was available to her not to get vaccinated; her dismissal, it said, was simply the consequence of having made that choice. 2. In response to the submission that medical procedures are not expressly permitted as a control measure under reg 36 of the Work Health and Safety Regulation, the respondent again acknowledged this was true on its face, but pointed out that no specific procedure of any kind was set out under that regulation. The respondent said: "[The regulation] simply provides that, if a risk to health and safety cannot be eliminated, then it must be addressed using a hierarchy of control measures, including engineering and administrative controls and the use of PPE. Consistently with the guidance issued by SafeWork NSW, vaccination is a higher-order risk control measure that the Respondent is adopting, along with PPE and other risk control measures, to try and minimize the risks associated with COVID 19." In this respect, the respondent says that there is nothing in the provision that renders the direction unlawful. 1. In respect of the appellant's submission that the direction is at odds with guidance material published by the Fair Work Ombudsman, the respondent submitted that the guidance material was non-binding. It also submitted that the guidance nevertheless acknowledges that employees can be given a lawful and reasonable direction to get vaccinated. 2. In response to the appellant's submission that the dismissal contravened ss 104 and 108 of the Work Health and Safety Act, the respondent said: "Under the WHS Act, a person cannot dismiss an employee for a prohibited reason, which includes where a person raises a concern about work health and safety. The Appellant never squarely raised a safety concern about the vaccines, beyond baldly suggesting they were in the 'experimental phase' and not safe or effective for all individuals. In any event, there is no causal link between the Appellant's dismissal and her raising any safety concerns. The evidence clearly demonstrates the appellant was dismissed for disobeying the Direction." 1. In response to the submission that the appellant sought an extension of time to seek appropriate advice, the respondent's submission was: "… [it] observes that the Appellant had not filed any evidence to suggest she had since sought or obtained any medical advice. Further, the Appellant was on leave until 23 October 2021, which allowed her sufficient time to consult with an immunologist and reach an informed decision." I note that the appellant actually never received any advice from an immunologist, and also note that there was an unexplained delay of 20 days between the mandate being issued by the Commissioner of Police and the appellant seeking the advice of her doctor. 1. In response to the appellant's submission that the direction was outside the scope of the Police Act and Police Regulations, the respondent said: "It is true that neither legislative instrument expressly authorises the Direction. However, in order to be unlawful, the Direction must be shown to be contrary to law. There is no provision of any statutory instrument that the Direction contravenes in this regard." 1. In response to the submission of the appellant that the direction does not comply with the Privacy Act 1988 (Cth), the respondent submitted: "[It] is not bound by that legislation, and regardless, this argument has been previously considered and rejected in other cases." 1. In response to the submission that the direction does not comply with anti-discrimination legislation, the respondent submitted: "While it can be accepted that the Respondent treated unvaccinated people differently from vaccinated people, being vaccinated is not a protected attribute under any anti-discrimination laws." 1. Finally, in response to the submission that vaccines are only provisionally approved for use, and are experimental and still part of a clinical trial, the respondent submitted: "This assertion is entirely at odds with the regulatory approvals on the vaccine use, is unsupported by any evidence, and the argument has previously been considered and rejected." 1. In terms of consultation, the respondent's submissions were: "7. The appellant appears to allege that the direction was unlawful and/or unreasonable because the respondent failed to adequately consult with members of the NSWPF. 8. In Mt Arthur Coal, the Full Bench of the Fair Work Commission concluded (at [85]) that a direction to get vaccinated, designed to protect the health and safety of employees and others on the work site was prima facie lawful, as it fell within the scope of employment and there is nothing unlawful about being vaccinated. … 9. Two further preliminary points must be made about consultation. Firstly, an absence of consultation on the Direction is not fatal to the conclusion that the Direction was lawful and reasonable. The issue of consultation is relevant but not determinative. 10. Secondly, the statutory duty to consult with workers under s 47 of the Work Health and Safety Act applies only where such consultation is reasonably practicable. 11. In this case, while the rapid spread of the Delta variant may have left the NSWPF with a fair argument to say that consultation of any kind was not reasonably practical, the NSWPF nonetheless endeavoured to undertake an abridged form of consultation with its members. Plainly, the increasing risk to the health and safety of NSWPF employees in around August and September 2021 rendered it not reasonably practicable for the New South Wales Police Force to undertake an extensive consultation process. 12. The Respondent instead chose to give the Direction to employees, but allow workers an opportunity to express any contrary views in relation to that Direction by way of a process of applying for an exemption from compliance with the Direction." 1. The respondent also set out in its submission a long history of materials and engagement with employees prior to the direction, and I have had regard to those matters as to consultation. 1. I accept and adopt the submissions of the respondent as outlined above as my reasons, save as outlined or added to with what follows. 2. A direction to do something which is legal is, in my view, almost impossible to concede as an unlawful direction. Getting vaccinated is without question a lawful activity. 3. In this respect, I want to expressly note that by mandate what was being asked of the applicant was that she attend a medical setting to receive a vaccine. There is no serious basis on which it was or could be suggested that anyone was to be physically forced, restrained if you will, to be vaccinated without their consent. 4. The appellant had a choice to be vaccinated or not to work for the New South Wales Police Force. It may be a choice she does not like, but it was a lawful one. 5. I turn to whether the direction was reasonable. 6. As the respondent sets out in the opening words at paragraph 19 of its submission, it must be borne in mind that the direction arose during the peak of the Delta variant outbreak. 7. In this regard, I note that, in the context of a global pandemic, the High Court has determined that the word "absolute" in the Australian Constitution is a contextual word. Accordingly, in a 1-in-100-year pandemic what is "reasonable" must also be contextual. 8. The New South Wales Police Force has over 20,000 members. It was at the time faced with an extraordinary set of circumstances and workload. It was faced with deciding in a dynamic environment how it should best ensure the welfare of its members and the community. 9. It was suggested perhaps that the applicant could work from home, or the work arrangements of the appellant could be otherwise arranged so that she would have no contact with other members of the New South Wales Police Force. 10. In my view, that is an unreasonable request in both the circumstances of the time, the number of employees of the New South Wales Police Force, and the fact that were the New South Wales Police Force going to make that allowance for one employee, there would obviously be many other employees, possibly many hundreds, seeking a similar accommodation. The policy was, and in my view, remains reasonable. 11. There is no case relating to the relevant period in which the Commission or the Fair Work Commission has found otherwise than that a direction to be vaccinated was a lawful and reasonable one; nor has any decision supported the view that the work health and safety consultation requirements alone can make the direction unlawful or unreasonable. 12. It is clear from the evidence and the documents before the Commission that the appellant objected to being vaccinated. If I turn to the document in which the appellant sought to be exempted from the vaccine mandate [1] , under the heading "Comment" the document begins with, "I have never wanted to get the COVID vaccination, and had no reason to think this was an issue for my employment". 13. The appellant's position and evidence were that she had not sought an exemption, but an extension of time. It is clear that the respondent regarded her letter as an exemption request; it is readily apparent why. 14. In the Appellant's letter, the final words on the second page [2] are, "Please accept this report as an articulation of my valid reasons for non-compliance by 30 September 2021". 15. I do not think it matters greatly which categorisation it is; exemption, or extension of time. 16. In my view, the whole of that document is to the effect that the appellant would not be complying by 30 September 2021 and sought to be excused from doing so. 17. In my view, it was a substantial and wilful breach. The appellant did not comply with the lawful and reasonable direction. 18. The question then falls to whether the dismissal with an option to resign was an appropriate outcome. In short, I think the answer to that question is yes. 19. Some of the issues I have already covered are relevant again in this context; the scale of the New South Wales Police workforce; the management needs not to have to manage possibly many hundreds of employees if they had all sought special work arrangements and were not to have contact with colleagues; there was no evidence of any prospect that the appellant would reconsider her decision not to be vaccinated. 20. There was before me no medical evidence of a contraindication; nor was there any evidence of the appellant having sought an immunologist's opinion. 21. The appellant has an obviously genuine fear of the consequences of vaccination. She clearly feels aggrieved by the outcome, but that belief, however genuine, however strongly held, cannot overcome the rational basis on which the Commissioner of Police set the vaccination requirement, and the fact that the appellant chose not to comply without meeting either of the alternative options. 22. In the circumstances, I disallow the appeal. C Muir Commissioner ********** Endnotes 1. Exhibit R1, Respondent's Tender Bundle, at p7, under Tab D 2. Exhibit R1, Respondent's Tender Bundle, at p6, under Tab D DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2022