Industrial Relations Commission New South Wales Medium Neutral Citation: Darmanin v Hornsby Shire Council [2023] NSWIRComm 1107 Hearing dates: 24 and 25 August, 24 and 25 November 2022, final submissions filed 10 March 2023. Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee dismissed for failure to comply with employer's requirement to be vaccinated against COVID-19-whether the requirement to become vaccinated against COVID-19 was a lawful and reasonable direction- whether dismissal otherwise harsh, unreasonable or unjust. Legislation Cited: Industrial Relations Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Blackwood v Northern Beaches Council [2022] NSWIRComm 1052 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Jovcic v Coopers Brewery Ltd (2022)316 IR 133 Les Tytula v Coventry Group Limited T/A Cooper Fluid Systems [2022] FWC 2085 Parmalat Food Products Pty Ltd v Wililo, (2011) 207 IR 243 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Stewart Tween v Qantas Airways Ltd [2022] FWC 1594 Paul Robert Taggart and Bell Sports Australia [1999] NSWIRComm 408 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Zsombor v New South Wales Institute of Sport Staff Agency ABN 975 882 795 [2022] NSWIRComm 1088 Texts Cited: NIL Category: Principal judgment Parties: Rhonda Darmanin (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: Ms P Lowson (Respondent) Solicitors: Sunova Law (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2022/00086272 Publication restriction: NIL decision 1. This decision deals with an unfair dismissal application under section 84 of the Industrial Relations Act 1996 (NSW) (the "IR Act") in relation to the applicant's dismissal from her employment with the respondent on 4 March 2022 for failure to comply with respondent's COVID-19 vaccination determination (the "Application"). 2. For the reasons that follow, I have decided to dismiss the Application. Background 1. On 6 January 2003, the applicant commenced employment with the respondent and was, prior to the events that led to her dismissal, working in the position of Senior Human Resources Officer, working in the Employment Services Team (the "ES Team") with Hornsby Shire Council. 2. Prior to March 2020, the ES Team, including the applicant, worked out of the administration building of the respondent. After this time, they were working from home for extended periods due to COVID-19 outbreaks and in response to public health orders made by the Health Minister. 3. In February and May 2021, the respondent raised the issue of vaccination against COVID-19 with Health and Safety Representative ("HSR") forums. 4. On 26 June 2021, following the emergence of the Delta variant of COVID-19 in Sydney, the respondent was required to close various facilities and have staff work from home if reasonably practicable to do so pursuant to public health orders. 5. On 9 September 2021, the respondent sent a survey to all staff asking the staff about their vaccination status and intention to be vaccinated. 6. On 14 September 2021, a HSR forum was held in which the respondent representative stated that control measures would need to be determined and implemented for unvaccinated staff. 7. In correspondence dated 18 October 2021, the respondent informed the relevant unions, including the USU, LGEA and the DEPA of its intention to develop and implement a policy requiring COVID-19 vaccination. 8. On 25 October 2021, an extraordinary HSR forum was held, during which those who attended (remotely due to the continuing lockdowns) were informed of the following: 1. The outcome of the first survey, was that of the 409 respondents, over 64.6% were fully vaccinated (2 doses), 27.74% had received1 dose of vaccine, 5.84% planned to get vaccinated, 1.82% did not plan to get vaccinated; 2. The respondent was going to send all staff a second survey seeking their opinion about mandating vaccination for roles based on the risk of carrying out that role, mandating vaccination for all staff and returning to the workplace with unvaccinated staff; 3. That there be a risk assessment applied to all roles across Council to determine the COVID-19 risk within the current COVID environment; and 4. The respondent had a target date for a return to work in a fully blended work arrangement of 60% work from the office to 40% work from home, by 17 January 2022. 1. Also on the same day, all staff were sent the foreshadowed second survey seeking their opinion and feedback on the Council possibly mandating vaccination for higher risk roles. 2. On 28 October 2021 a meeting of the respondent's consultative committee took place, which was attended by various union officials and delegates during which the respondent informed the attendees of the most recent steps undertaken in response to COVID-19. 3. On 1 November 2021, the applicant attended one of a number of staff information sessions, which were conducted both via Microsoft Teams ("Teams") and in person. The sessions covered the topics of the respondent's intention to introduce a vaccination requirement. Staff were informed at these sessions that it was the intention of the respondent that a risk assessment tool would be used to determine which roles were higher risk and requiring vaccination. 4. The respondent conducted risk assessments for all roles and determined that the role performed by the applicant required her to be vaccinated. 5. On 23 November 2021, Mr Mitchell and Mr Bickerstaff met with the applicant, by way of Teams meeting to advise her of the outcome of the vaccination risk assessment and that it was a requirement of her position that she be vaccinated by 14 January 2022. This was confirmed in correspondence dated 22 November 2021. 6. On 20 December 2021 the respondent formally implemented the "COVID Safe Workplace Determination & Procedures" (the "Determination") which required full COVID-19 vaccination of certain employed in identified roles by 14 January 2022. 7. Also on 20 December 2021, the respondent sent further correspondence to the applicant reminding her of the requirement for her to be fully vaccinated for COVID-19 by 14 January 2022 and informed her that a Teams meeting was scheduled for 11 January 2022. 8. The applicant eventually replied to the respondent in correspondence dated 7 January 2022, in which she requested the provision of certain information including the results of the risk assessment. She raised issues regarding vaccines and their safety. There was also a request by her for the respondent reconsider its' position with respect to the requirement to become vaccinated. She put forward the following alternatives to vaccination requirement: 1. She works at the office for 3 days per week subject to returning a negative rapid antigen test; 2. Working from home and attending necessary face to face meetings, such as disciplinary meetings via Zoom or Microsoft Teams, in addition to or in the alternative to the above; and 3. Shift tasks within the work team to accommodate her ongoing position to be performed wholly remotely and/or on a flexible basis. The applicant concluded the letter by indicating her non preparedness to attend the Teams meeting scheduled for 11 January 2022 and requesting the response to her correspondence be sent to her personal email address. 1. On 13 January 2022, the respondent replied to the applicant's correspondence, in which the respondent provided a response to each of the alternatives and stated that the vaccination requirement remained. It gave an overview of the consultation process undertaken by the respondent. It also offered that she could contact the respondent to discuss the risk assessment of her role. 2. On 28 January 2022, the applicant sent further correspondence to the respondent in which she made a number of allegations including that the respondent had contravened the requirement to consult prior to the vaccination requirement. She also stated that she wanted a copy of the risk assessment of her position and the Policy, and she repeated her request for the respondent to reconsider its' position. 3. On 2 February 2022, the respondent wrote to the applicant again enquiring as to her preparedness to take the Novavax COVID-19 vaccine. It also requested that she respond by 9 February 2022 and that if they do not have a response by then they will assume that she is unvaccinated and does not intend to receive a COVID-19 vaccination. 4. On 9 February 2022, the applicant wrote to the respondent in which she did not indicate whether she was prepared to become vaccinated. Instead, she made requests for the provision of documents within seven days and repeated the allegations concerning failure to consult. 5. The respondent wrote to the applicant on 16 February 2022, in which they stated that the risk assessment had been explained to the applicant at the meeting of 23 November 2021. They provided further details of the consultation process that had taken place and invited her to consider taking Novavax. The respondent also informed the applicant that the vaccination requirements remained and that there was a zoom meeting with her programmed for 23 February 2022. 6. On 22 February 2022, the applicant sent correspondence to the respondent repeating her views regarding the vaccination direction stating that she would not attend the planned meeting on 23 February 2022, for reasons including that she was unwell. 7. On 4 March 2002, the respondent wrote to the applicant informing her that her employment was terminated for the following reason: Having considered the matter in its entirety, on the basis you have failed to follow a clear safety directive issued by me and that you have made it clear that you have no intention of following such directive, Council has made the decision to end your employment with notice. Your employment will end at the close of business today, and you will be provided with 5 weeks' pay in lieu of notice. Approach 1. The guiding consideration in relation to an application made pursuant to s 84 of the IR Act, is for the Commission to determine whether the dismissal was harsh, unreasonable or unjust: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. 2. It is the applicant who bears the onus to prove whether the dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 3. The leading authority as to what constitutes harsh, unreasonable or unjust is in the following passage from the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 1. Section 88 of the IR Act provides the Commission may take the following matters into account when determining whether a dismissal was unfair: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. The matters listed in s 88 are a guide as to what the Commission may take into account: Paul Robert Taggart and Bell Sports Australia [1999] NSWIRComm 408. The issues 1. The applicant in her written submissions grouped the reasons that she alleged that the dismissal was unfair on the following grounds: 1. There was no valid reason; 2. The requirement to become vaccinated constituted an unlawful and unreasonable direction; 3. The applicant was denied procedural fairness; and 4. The dismissal was harsh. Consideration 1. It is appropriate to deal with each of the grounds advanced by the applicant separately, noting that there was a degree of overlap between each. Valid Reason 1. The primary submission advanced by the applicant under this ground was that that there was no valid reason and therefore the dismissal was unfair for the purposes of the IR Act. In support of this proposition, the applicant relied upon the following passage from the decision of the then Full Bench of the Fair Work Commission in Parmalat Food Products Pty Ltd v Wililo, (2011) 207 IR 243 at [24]: The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. 1. The applicant submitted that there was no valid reason for the dismissal on the following basis: 1. Because the allegation was wrong, it had no basis in fact; 2. Because the respondent was aware that its' reasons were untrue and could have no basis in fact; 3. Is proven to be wrong on the evidence; and 4. Was incapable of having been arrived at on any reasonable basis. 1. It was put by the applicant that the finding which was improperly arrived at by the respondent was that the applicant had no intention of becoming vaccinated. It was further put, that the allegation was one of misconduct and consistent with Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 that the Commission is to determine whether the misconduct in fact occurred, not whether the respondent had reasonable grounds to believe that it occurred. 2. The applicant pointed to her response to the first survey that she had expressed an interest in becoming vaccinated and was awaiting the respondent to provide information for her to make an informed decision, as evidence that the respondent's determination that she would not get vaccinated was flawed. 3. Firstly, in applying concept of "valid reason" from s 387(a) of the Fair Work Act 2009 (Cth), the applicant has misconceived the test to be undertaken by this Commission. The applicable test is that as set out earlier in this decision i.e. was the dismissal harsh, unreasonable or unjust. 4. The applicant's submission concerning her preparedness to become vaccinated, is possibly a consideration under s 88(b) of the IR Act i.e. did it have a basis in fact. 5. The applicant was put on notice of the requirement to become vaccinated or face the possible consequence of termination of employment on 23 November 2021. The direction was repeated on at least four further occasions and the applicant did not comply with it, nor confirm that she intended to comply with that direction. 6. I find that not only was there a reasonable basis for the respondent to consider that the applicant would not be vaccinated, but there is also sufficient evidence before this Commission for a finding that the applicant had failed to abide by the direction. I am further fortified in this position when regard is had to the admission made by the applicant that she was unvaccinated at the time of the hearing. 7. This ground of alleged unfairness is not made out and is therefore rejected. Lawful and reasonable direction 1. The applicant alleged that not only the requirement to become vaccinated was unlawful and/or unreasonable, but also that the termination was unlawful. 2. The applicant also advanced a number of other grounds upon which she alleged that some aspects of the respondent's treatment was unlawful or unreasonable, which are irrelevant to the consideration to be undertaken and will not be set out in this decision. For instance, alleged contraventions of s 109 of the Work, Health and Safety Act 2011 (NSW) (the "WHS Act") in making false and misleading statements and that an alleged threat to stand her down without pay was contrary to various clauses of the Local Government (State) Award 2020 (the "Award"). 3. The applicant put that the conduct of the respondent in relation to her dismissal was unlawful and/or unreasonable on the following basis: 1. The respondent contravened s 104 of the WHS Act by standing down and dismissing the applicant for the reason that she had raised an issue or concern about work health and safety which is a prohibited reason under ss 106(h) of the WHS Act; and 2. The respondent failed to consult in relation to the requirement to become vaccinated as required by s 47 of the WHS Act. 1. In relation to the contravention of s 104 of the WHS Act, this Commission is not empowered with the requisite jurisdiction to make such a determination, as s 112 of the WHS Act requires proceedings under s 104 to be brought before the District Court. 2. Even if there were jurisdiction, I am satisfied that the evidence discloses that the respondent threatened to stand down the applicant and then dismissed her because of her failure to abide by the requirement to be vaccinated against COVID-19. 3. As to the failure to consult under the WHS Act, firstly, such a failure if it occurred would not render the requirement to be vaccinated unlawful: Stewart Tween v Qantas Airways Ltd [2022] FWC 1594 ("Tween") at [91]-[92]. 4. Secondly, the applicant's submission that there was a failure to consult is without substance. The background as set above, makes it clear, the respondent undertook a detailed consultative process with HSR's, the consultative committee, relevant unions and also with employees at information sessions. In addition, the applicant was provided with a number of opportunities to meet with the relevant personnel of the respondent to discuss the outcome of her risk assessment but she failed to do so. 5. Finally, the requirement to be vaccinated against COVID-19 has been found to constitute a lawful and reasonable direction in numerous decisions of this Commission and the Fair Work Commission. See for instance, Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004; Blackwood v Northern Beaches Council [2022] NSWIRComm 1052; Zsombor v New South Wales Institute of Sport Staff Agency ABN 975 882 795 [2022] NSWIRComm 1088; Tween; Jovcic v Coopers Brewery Ltd (2022) 316 IR 133and Les Tytula v Coventry Group Limited T/A Cooper Fluid Systems [2022] FWC 2085. The applicant has not brought before the Commission any acceptable basis why a different conclusion should apply to this application. 6. Accordingly I find the requirement for the applicant to be vaccinated for COVID-19 constituted a lawful and reasonable direction and the applicants submission that it was not is rejected. Procedural Fairness 1. The applicant alleges that she was denied procedural fairness in the process leading to termination on the following alleged reasons: 1. She was not provided with a draft copy of either the vaccination risk assessment form, nor the outcomes of the respondents decisions in relation to vaccination prior to the implementation of the requirement to become vaccinated; 2. She was not provided any notice as to the purpose of the 25 November 2023 meeting; and 3. The termination process did not follow the process required under clauses 37 and 40 of the Award by failing to provide three written warnings. 1. The first two reasons provided by the applicant, even if factually correct, would not provide a proper foundation to find that the applicant was denied procedural fairness. 2. The third basis raised by the applicant is flawed, in that the Award did not require the respondent to provide three written warnings prior to her dismissal. In any event the applicant conceded under cross examination that she was fully aware from at least 20 December 2021, that failure to provide proof of vaccination against COVID-19 may lead to the termination of her employment. 3. Relevant to my consideration of whether there has been the provision of procedural fairness is the matters identified in s 88 of the IR Act and in particular s 88(b). 4. The applicant was put on notice of the requirement to become vaccinated against COVID-19 on 23 November 2021 and she was reminded by the respondent of this requirement in writing on at least four occasions prior to her dismissal. 5. The respondent considered the concerns raised by the applicant in her correspondence and provided a detailed response to them. 6. In the circumstances, I reject the submission that the applicant was not afforded the requisite level of procedural fairness. Harshness 1. The applicant argued that the dismissal was harsh in circumstances where she was not offered the alternatives including a redundancy or flexible working arrangement such that she could work from home. 2. The failure to offer either of the alternatives did not render the dismissal harsh. 3. Firstly, the applicant's position was still required to be performed and accordingly redundancy was not a proper option open to the respondent. 4. As to the working from home, the applicant's position as a senior HR Officer required her to regularly interact in person with managers and staff. In particular, her role required her to attend disciplinary meetings with staff. In those circumstances, the respondent was justified in rejecting the applicant's request to work from home. Conclusion 1. For the reasons articulated above, I find that the applicant has not made out that her dismissal was harsh, unjust and/or unreasonable and I make the following order: 1. The application is dismissed. ********** 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: 26 October 2023