Industrial Relations Commission New South Wales Medium Neutral Citation: Larter v Health Secretary in respect of Murrumbidgee Local Health District [2024] NSWIRComm 1029 Hearing dates: 27 February 2023 and 19 May 2023, final submissions 12 June 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker unable to work due to COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust Legislation Cited: Health Services Act 1997 (NSW) Industrial Relations Act 1996 (NSW) Public Health Act 2010 (NSW) Public Sector Employment and Management Act 2002 (NSW) Cases Cited: Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1082 Alexander v Commissioner of Police [2009] NSWIRComm 3 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 Griffin and others [2022] NSWIRComm 1027 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Kassam v Hazzard [2021] NSWSC 1320 Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 Munn & Others v The Health Secretary [2022] NSWIRComm 1044 Paul Robert Taggart and Bell Sports Australia [1999] NSWIRComm 408 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Rowland v Austar Coal Mine Pty Ltd [2010] FWA 8011 Starr v Commissioner of Police [2001] NSWIRComm 226; Welch v Commissioner of Police [2023] NSWRComm 1002 Western Suburbs District Ambulance Committee v Tipping: [1957] AR (NSW) 273 Category: Principal judgment Parties: Caitlin Brigid Larter (Applicant) Health Secretary, in respect of Murrumbidgee Local Health District (Respondent) Representation: Counsel: Mr S Prince SC (Applicant) Mr I Taylor SC (Respondent) Ms T Wong (Applicant) Mr M Whitbread (Respondent) Solicitors: Ashley, Francina, Leonard & Associates (Applicant) Spark Helmore Lawyers (Respondent) File Number(s): 2022/8271 Publication restriction: NIL decision 1. On 11 January 2022, the applicant filed an unfair dismissal application (the "Application"), seeking orders under s 89 of the Industrial Relations Act 1996 (NSW) (the "IR Act") arising from the dismissal of her employment on 7 December 2021 for the reason that she failed to provide evidence of receiving two doses of COVID-19 vaccine or receiving an approved medical contraindication (the "Vaccination Requirements"). Background Procedural History 1. On 2 February 2022, the Application was the subject of an unsuccessful conciliation, conducted by the Commission as currently constituted. 2. The Application was then one of a number of applications subject to a hearing on preliminary issues, which I determined in Munn & Others v The Health Secretary [2022] NSWIRComm 1044 ("Munn"). 3. A further unsuccessful conciliation occurred on 6 July 2022 and directions were made for the filing and serving of evidence and submissions. 4. The Application was the subject of an initial day of hearing on 27 February 2023. The applicant was cross examined on her witness statements and the respondent relied on the affidavit evidence from the following witnesses, each of whom were cross examined: 1. Anne McLeish who was employed in the position of Industrial Relations Specialist with the respondent; and 2. Nicole Myers who was employed in the position of Manager Healthy Children and Families with the respondent. 1. At the conclusion of the first day of hearing, directions were made for the filing of further written submissions. 2. The matter was listed for final oral submissions on 19 May 2023 along with the applicant's husband, Mr John Larter, whose unfair dismissal application was made against the Health Secretary on behalf of NSW Ambulance. Many submissions being applied by the parties to both matters. 3. On 16 May 2024, the respondent sent correspondence to the Commission with the consent of the applicant. This correspondence, in part, stated: "On 25 March 2024 a consultation process occurred with current NSW Health Staff and Industrial Associations to review the NSW Health Occupational Assessment Screening and Vaccination Against Specified Infectious Diseases Policy Directive (OASV Policy) and concluded with the following changes as of 16 May 2024: (a)The COVID-19 vaccination is no longer required but is instead recommended for workers and recruits to NSW Health; and (b) The Secretary's Determination No 33 of 2021 (the Determination) is rescinded. It is the Respondent's position that this information may only be relevant to the abovenamed decisions in circumstances where the dismissals are found to be unfair. The Respondent maintains that the dismissals are not unfair. However, the Respondent, as a model litigant, thought it prudent to bring this information to the attention of the Commission." 1. On 16 May 2024, the Commission listed this matter on 17 May 2024 for directions and following this listing, for decision. 2. On 17 May 2024, the parties attended on the directions hearing and the Commission was informed that with immediate effect, the Vaccinations Requirements were no longer required and the Health Secretary's Determination No 33 of 2021 (the "Determination") had been rescinded (the "Recission"). 3. The applicant sought to provide the Commission further written submissions in respect of the Recession; this was opposed by the respondent. 4. The Commission after hearing from the parties made further directions for the filing and service of written submissions and vacated the listing of the matter for decision. 5. Materials were filed and served on 9 and 18 May 2024 by the applicant and on 16 May 2024 by the respondent. Employment 1. In 1996, the applicant commenced working as a Registered Nurse in Deniliquin, New South Wales. Following this she worked at Royal Perth Hospital for one year and then returned to New South Wales and worked at Prince of Wales hospital where she studied a Post-Graduate Certificate in Critical Care. 2. The applicant worked at a number of hospitals around Australia and then commenced working for the respondent on 24 November 2014. She was initially engaged by the respondent on a number of casual and temporary contracts. 3. At the time of her dismissal, the applicant was employed in the position of Wellbeing and Health In-Reach Nurse Coordinator, which is a Clinical Nurse Specialist Grade 2 - Year 2 role, on a full-time contract which was due to expire on 2 July 2023. 4. The applicant stated in her witness statement that she performed the following daily duties: * accessing and identifying health and social needs, improving service coordination and case management; * facilitating access to health services, NGOs or other relevant services for students and families through collaboration with high schools, primary schools, health and social services; * promotion of holistic care, early intervention, health education; and * developing and maintaining strong, trusting relationships between Health and Education. 1. In performing her duties, the applicant would provide face to face nursing care in the Tumut area. This included the Tumut Community Health unit within the Tumut Health Facility, at the Tumut High School and, from time to time, at Tumbarumba and Batlow Schools. On occasions the applicant also worked out of an office located in the Tumut Hospital Emergency Department. 2. There was also evidence that the applicant had, for some unspecified time, worked from home as a result of the lockdowns introduced in response to COVID-19. This was described by Ms Myers as happening on rare occasions. 3. The applicant's last day of work was on or around 28 September 2021 which followed a period of sick leave that went through to 13 October 2021. She then used accrued days off and annual leave until the termination of her employment. Vaccination requirements 1. The Vaccination Requirements prior to her dismissal were brought about by the following instruments: 1. Public Health Act, made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (the "First PHO"); 2. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (the "Second PHO"); and 3. The Health Secretary's Determination No 33 of 2021 (the "Determination"). 1. The First and Second PHO were made by the Health Minister under s 7 of the Public Health Act 2010 (NSW), which provides: 7 POWER TO DEAL WITH PUBLIC HEALTH RISKS GENERALLY (cf 1991 Act, s 5) (1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. (2) In those circumstances, the Minister-- (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. (3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary-- (a) to reduce or remove any risk to public health in the area, and (b) to segregate or isolate inhabitants of the area, and (c) to prevent, or conditionally permit, access to the area. (4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. (6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989. (7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions-- (a) any action taken by the Minister under this section other than the giving of a direction by an order under this section, (b) any direction given by any such order. 1. A contravention of a direction under s 7 constitutes an offence and s 10 of the Public Health Act 2010, provides for maximum fines and possible imprisonment for such a contravention. 2. The Determination was said to be made pursuant to s 116A of the Health Services Act 1997 (NSW) (the "HS Act"), which is in the following terms: 116A SALARY, CONDITIONS ETC OF STAFF EMPLOYED IN THE NSW HEALTH SERVICE (OTHER THAN SENIOR EXECUTIVES) (1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law. (2) The Health Secretary may give directions to a public health organisation requiring the payment by the organisation, on behalf of the Government of New South Wales, of the salary, wages and other employment-related costs (such as superannuation, workers compensation, public liability insurance and vicarious tortious liability) of those members of the NSW Health Service who are employed under this Part to enable the public health organisation to exercise its functions. (3) The Health Secretary may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences. (4) An agreement under subsection (3) binds all members of staff in the group or class affected by the agreement, and no such member, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement. (5) This section does not apply to the conditions of employment of NSW Health Service senior executives under Part 3 of this Chapter. This subsection does not prevent particular conditions of employment under this section from being adopted by reference in the contract of employment of the executives. 1. The directions in the First PHO were set out in clauses 4 and 5 as follows: 4 Directions of Minister for health care workers to be vaccinated (1) The Minister directs that a health care worker must not do work as a health care worker unless- (a) if the work is done on or after 30 September but before 30 November 2021- the worker has received at least 1 dose of a COVID-19 vaccine, or (b) if the work is done on or after 30 November 2021-the worker has received at least 2 doses of a COVID-19 vaccine. (2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker. (3) Subclauses (1) and (2) do not apply to- (a) a health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak. 5 Direction of Minister for responsible persons for health care workers The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause. 1. Clause 6 provided an exemption from the direction in clause 4 for those health care workers who provide evidence that they were unable to receive the vaccination due to a medical contraindication. 2. The First PHO was replaced by the Second PHO on 22 October 2021, which again included directions for health workers to be vaccinated or provide an exemption for medical contraindication. The direction was in a slightly different form to the First PHO, and was in the following terms: 5 Health care workers not to work unvaccinated (1) A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVJD-19 vaccine. (2) A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine. (3) Subclauses (1) and (2) do not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract of service or a contract for services if— (a) the work does not involve the provision of a health service within the meaning of the Health Services Act 1997, and (b) the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health. (4) A health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker. (5) Subclauses (1), (2) and (4) do not apply to— (a) a health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak. 6 Responsible persons for health care workers Each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 5 applies complies with the clause. 1. The Determination was made on 12 November 2021, and mandated that it was a condition of employment for those employed in the NSW Health Service to have two doses of COVID-19 vaccine by 30 November 2021 or have provided a medical contraindication certificate. 2. On 23 December 2021, the Third PHO took effect. It expanded the list of persons subject to the vaccination requirements beyond those employed by the respondent but otherwise maintained the vaccination requirements for health care workers and the exemption for medical contraindication. 3. The Third PHO was repealed and replaced by the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 dated 21 March 2022 (the Fourth PHO). Which continued the Vaccination Requirements for public health workers and expired on 19 June 2022 and was not replaced. 4. Additionally, on 28 July 2022 the respondent issued a NSW Health Policy Directive, "Occupational Assessment, Screening and Vaccination Against Specific Infectious Diseases" (the "Policy"), which also required employees of the respondent to be vaccinated for Covid-19. 5. On 16 May 2024, the Commission was informed by the Respondent that the Determination had been rescinded and the Policy amended, such that the Vaccination Requirements were no longer mandatory, with immediate effect. Termination Process 1. On 26 August 2021, all employees of the respondent, including the applicant, were informed by way of email of the vaccination requirements in the First PHO. This requirement was that employees, who have not received the COVID-19 vaccination or provided a medical contraindication form will not be able to work on and from 30 September 2021. 2. In the period between 21 and 23 September 2021, in several emails the applicant raised questions and concerns with the respondent regarding COVID-19 vaccination and also sought clarification as to whether her employment would be terminated. The respondent replied to these emails and in an email to the applicant on 23 September 2021, Ms Sarah Chambers stated: "Thank you for your email, as the Public Health Order comes into effect on 30 September 2021 employees who have not received the Covid-19 vaccination or provided a medical contraindication form will not be able to work from and including on the 30th of September. Each employee in this scenario will be contacted and provided with the next steps in terms of ending employment on the 30th." 1. On 15 October 2021, the respondent provided the applicant with correspondence (the "First Show Cause Letter") which referred to the First PHO and included the following: "Despite having been given a reasonable period of notice, you do not meet vaccination/ medical contraindication requirements, and accordingly are unable to perform your role/ work in the NSW Health Service. Accordingly, NSW Health is considering the viability of your future employment, including whether to terminate your employment. You are invited to provide any submissions that you wish to make as to why your employment should not be terminated. Any submissions will be considered carefully before a decision is made about your ongoing employment with the NSW Health Service." 1. The applicant responded to the First Show Cause Letter in correspondence dated 29 October 2021. In this correspondence the applicant provided the following reasons: * she was not in contravention of the First PHO as it only prohibited to the performance of work and she was not working; * she was requesting an exemption from Mr Brad Hazzard, Minister for Health and Medical Research; * the PHO was the subject of a challenge in the Supreme Court of New South Wales; * she is able to work from home. * her family is facing financial hardship as a result of being unable to work; * she is aware of adverse reactions to the vaccinations and would be willing to consider alternate options; and * she has moral and religious objections to the COVID-19 vaccinations. 1. On 18 November 2021, the respondent sent the applicant a second show cause letter (the "Second Show Cause Letter"), which informed the applicant that the Second PHO directed public health workers not to perform work unless they had received two COVID-19 vaccinations. It also detailed the requirements of the Direction which was attached and provided the applicant with a further opportunity to provide reasons why her employment should not be terminated. 2. The applicant did not respond to the Second Show Cause Letter and in early December a brief for the Chief Executive of the respondent was prepared recommending the termination of the Applicant's employment. The brief was approved by the Chief Executive on 6 December 2021. Consideration 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 contained 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 that the Commission may take the following matters into account when determining whether a dismissal was unfair: 1. 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; 2. 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; 3. whether a warning of unsatisfactory performance was given before the dismissal; 4. 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; 5. whether or not the applicant requested reinstatement or re-employment with the employer; and 6. 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 Recission 1. It is appropriate at this point to deal with the applicant's submission to admit further evidence as to the decision to remove the requirement of workers to be vaccinated and the purpose of the admission. 2. The applicant contended that the evidence of the Recission should be accepted and that it was relevant both as to the determination of unfairness and remedy. 3. In support of the contention that the Recission was relevant to the determination of unfairness, the applicant submitted that the respondent unreasonably failed to consider alternatives to dismissal, such as taking leave during the period between the First PHO and the Recission. The applicant calculated that his accrued leave was sufficient to allow him to be absent from the workforce suggesting that the Determination was unreasonable. It pointed out that these submissions were directly relevant to the contention already made in its closing submissions that there were alternatives to dismissal and thus the Determination was unreasonable. 4. The respondent firstly submitted that evidence of the Rescission should not be accepted as evidence by the Commission for reasons including that the material was not relevant to the determination of unfairness and that extenuating circumstances did not exist so as to warrant the granting of leave to admit this evidence. 5. Curiously, the respondent submitted that the Recession may be relevant to the issue of remedy 6. As to the question of relevance of the Recission vis a vis the issue of unfairness, the respondent relied upon Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 to argue that the determination of whether unfair dismissal occurred is decided with reference to the circumstances as they existed at the time of the dismissal. It also referred to Bankstown City Council v Paris (1999) 100 IR 363; Starr v Commissioner of Police [2001] NSWIRComm 226; Alexander v Commissioner of Police [2009] NSWIRComm 3; and Rowland v Austar Coal Mine Pty Ltd [2010] FWA 8011. 7. In its her further submissions in reply, the applicant attempted to distinguish these authorities by contending that the facts under present consideration are distinctive in that a change to an existing policy occurred, rather than the emergence of a new fact. The respondent, on the applicant's reasoning, should have known that the Determination would eventually be amended or rescinded, making the Recission relevant to the facts at the time for the purposes of determining this unfair dismissal application. 8. Firstly, I accept the admission of the evidence of the Recission and in doing so note that it was the respondent who brought the possibility of the Recission to the attention of the Commission. Further the Commission considers that the Receission could be relevant to any consideration of remedy, but for the following reasons finds that it is not relevant in relation to the determination of unfairness. 9. The Commission does not accept the reasoning advanced by the applicant. Even if the applicant's claim that the respondent should have known that the Determination would change is correct, there is no way the respondent could have known when any such recission could have taken place. No aspect of the Recission was a fact the respondent could have known at the time of the dismissal beyond a general apprehension that the Determination was impermanent and may be amended at some time in the future. To attempt to include the Recission in the facts that may be relied upon as forming part of the circumstances surrounding the dismissal is to place more weight on this general apprehension than it will bear, and the Commission consequently accepts the relevance of the respondent's line of authorities. Accordingly, the evidence of the Recission is not relevant to the unfairness of the dismissal. The applicant's case 1. The applicant's case in relation to unfairness, can be distilled to the following grounds: 1. The applicant was dismissed on the incorrect basis that she had contravened the Second PHO; 2. The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction; 3. The dismissal was procedurally unfair; and 4. The dismissal was harsh. 1. The applicant also submitted that the Policy was unlawful and unreasonable and thus is not an obstacle for the Commission to exercise its' discretion to order the remedy of reinstatement or re-employment should there be a finding of unfairness. 2. It is convenient to firstly deal with each ground advanced by the applicant in relation to unfairness separately. No requirement under the PHO's to be vaccinated 1. The applicant contended under this ground, that the applicant was compliant with the PHO's however the respondent believed she wasn't and this was the reason why she had to show cause as to why her employment should not be terminated and she was ultimately dismissed. 2. In support of the contention that the applicant was compliant, the applicant firstly relied on the reasoning of Beech-Jones CJ in Kassam v Hazzard [2021] NSWSC 1320. In particular the applicant relied upon that part of the decision in which his Honour determined that the Public Health Orders requiring persons to be vaccinated if leaving an area of concern or entering a construction site, did not "authorise the involuntary vaccination of anyone", nor impair a person's autonomy over their own body. 3. The effect of the applicant's contention on this ground, was that the obligation under the First and Second PHO was placed on the respondent to not permit the applicant to work, which they did by directing her not to work. She then submitted, that by remaining unvaccinated, she was not in breach of or "non-compliant" with the Second PHO and that she was always compliant with the First and Second PHO because she did not work as a health care worker whilst unvaccinated. 4. On this ground, the applicant further contented that the respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain is flawed. The applicant in support of this contention made the following submission: 17. The fundamental nature of the master and servant relationship is that a servant earns wages "for the service reasonably demanded" by the master: Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 (Automatic Fire Sprinklers) at 466. In Automatic Fire Sprinklers, it was also observed at 466 that "They also serve who only stand and wait" and therefore "A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract". The Respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain. It places the burden entirely on the worker without recognising that a worker only does work if she is directed or required to do so by her employer. Properly read, the words in clause 6 and clause 5 mean that at no stage could the employer require the unvaccinated employee to perform work. The words "A health care worker must not do work as a health care worker unless the worker has received at least 2 doses of a COVID-19 vaccine" contain a prohibition upon the employer and curtails the right of the employer to direct the worker to "do work" unless the worker is vaccinated. Clause 6 confirms that this is so. 1. As to being terminated on the ground of non-compliance with the Second PHO, the applicant pointed to the evidence of Ms Mc Leish that she believed that the applicant was not compliant with the Second PHO and this is the understanding that she applied to recommending the termination of the applicant's employment. 2. The respondent asserted that the applicant was not terminated for misconduct or wrongdoing, rather, pursuant to cl 5 of the Second PHO she was not permitted to perform any work. 3. It was contended by the respondent that the reason for dismissing the applicant was that as at the date of termination, the applicant had not been able to work for just over two months and there was no expectation that she would be able to do so in the foreseeable future. 4. In relation to the applicant's submission as to the evidence of the respondent's witnesses in relation to non-compliance with the Second PHO, the respondent's submission was to the effect that these witnesses were simply responding to propositions put in cross examination. 5. The respondent submitted that the reason was valid in that it was sound, defensible and well-founded and was consistent with the finding of Commissioner Sloan in Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 and Commissioner Webster in Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1082. 6. In reply, the applicant put that the respondent's position was inconsistent with the respondent's own witnesses, both of whom gave evidence under cross examination that the applicant was terminated for failing to comply with the Second PHO and also the Determination. 7. Furthermore, the applicant submitted that due to the 90 day time limitation of each PHO by application of s 7(5) of the Public Health Act 2010 and confirmed in Larter v Hazzard [2022] NSWCA 238 at [25], there could not be any expectation by the respondent that the requirements under the Second PHO would be extended and would at some stage come to an end. 8. Central to the determination of this ground, is what role did the Second PHO have in relation to the dismissal? 9. The following statements were made in the 26 August 2021 communication from Mr Minns to all staff after the First PHO was made: Given the situation we are now facing with the current COVID-19 outbreak and the extremely contagious nature of the Delta variant, a Public Health Order will now require the vaccination of NSW Health staff to ensure the safety of our people and patients across the State. Mandatory COVID-19 vaccination will now be required for all NSW Health staff with first vaccination required by 30 September 2021 and second vaccination by 30 November 2021 in order to continue to work for NSW Health. 1. The document that was sent to all employees called "From the Desk" included the following statement regarding the First PHO: The Public Health Order requires all Health care workers to have a first dose of COVID-19 vaccine by 30 September 2021 and a second dose by 30 N0vember 2021 to continue to work for NSW Health. 1. The communication entitled "Frequently Asked Questions-Mandatory Vaccinations for Healthcare Workers" of 3 September 2021 which was sent to all employees provided the following explanation of the First PHO: Has a Public Health Order been made? Yes. The Public Health (COVJD-19 Vaccination of Health Care Workers) Order 2021 has been made. Health care workers will need to have received at least one dose of a COVID-19 vaccine by 30 September 2021 and two doses by 30 November 2021 to continue to work for NSW Health or a Private Health Facility (licensed under the Private Health Facilities Act). 1. Later it goes on to explain the consequences of not meeting the vaccination requirements as follows: What happens if I decide not to be vaccinated? NSW Health is required to comply with the requirements of the Public Health Order and to manage risks associated with unvaccinated staff appropriately. NSW Hea!th requires staff to comply with the Public Health Order. If you do not meet the COVID-19 vaccination requirement on the date it applies, or do not have an approved medical exemption, then you cannot continue to work within NSW Health or a Private Health Facility (licensed under the Private Health Facilities Act). 1. In an email to the applicant on 21 September 2021, the applicant was informed that the First PHO worked in the following way: Pursuant to the Public Health {COVID-19 Vaccination of Health Care Workers} Order 2021 (PH Order), mandatory COVID-19 vaccination will now be required for all NSW Health staff with first vaccination required by 30 September 2021 and second vaccination by 30 November 2021 in order to continue to work for NSW Health. 1. The above explanation of the PHO was repeated in a letter sent by the respondent to the applicant on 23 September 2021. 2. In the First Show Cause Letter, the applicant was informed that the obligation under the First PHO operated in the following way: I refer to previous correspondence notifying you of your obligations under the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PH Order). This correspondence advised you how to comply with the PH Order and provided you with notice that you would not be able to continue to work at Murrumbidgee Local Health District if you did not comply with the PH Order by 30 September 2021. 1. It is apparent that the applicant considered that she was in line to be dismissed for alleged failure to comply with the Second PHO when in her reply to the First Show Cause Letter she stated: The letter states that I am not in compliance with the public health order (Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021). That overarching statement is not the entire truth of the matter. While it is true that I have not provided to NSW Health proof that I have received of a COVID-19 vaccination, or provided NSW Health with evidence of a medical contra­ indication (on the approved form and which has been accepted by the Chief Health Officer), I am not performing any 'work' as defined by the public health order. Therefore, I am not in breach of the public health order………… 1. The Second Show Cause did not seek to disavow the applicant of her understanding of how the First PHO worked. In reference to the First Show Cause letter it further stated: That letter set out obligations under the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021. 1. The brief prepared for the CEO of the respondent to consider the applicant's employment in early December 2021 was titled "Termination of employment due to non-compliance with COVID-19 vaccination requirements". 2. Then The letter of termination stated that by not providing evidence of COVID-19 vaccination or a medical contraindication the applicant had failed to comply with the First and Second PHO. 3. The clear and unequivocal evidence of the respondent's witnesses was that one of the reasons that the applicant was dismissed was because she was not compliant with the Second PHO. I particularly note the evidence of Ms McLeish that when recommending dismissal, in part she relied upon her belief that the applicant had contravened the PHO's. 4. As evidenced by her reply to the First Show Cause Letter, the applicant was also of the understanding that her employment may be terminated for what the respondent considered to be her non-compliance with the First and Second PHO. 5. The body of evidence referred to immediately above leads to the most obvious conclusion that one of the reasons the applicant was dismissed was because of her alleged non-compliance with the Second PHO. 6. It is uncontroversial that the First and Second PHO did not require the applicant to become vaccinated against COVID-19, rather it placed an obligation upon the employer to prohibit the applicant from performing work until she became vaccinated or received a medical contraindication. 7. Thus to terminate the applicant on the ground of non-compliance with the Second PHO is flawed and accordingly unjust. The Direction was unlawful 1. By the time of the closing submissions, the applicant advanced three bases upon which she contended the Determination was unlawful and unreasonable, all of which were when considered alleging unlawfulness and not unreasonableness. 2. Before turning to these grounds, it is first necessary to deal with the respondent's submission that the validity of the Determination is not a matter for the Commission to determine. 3. The respondent made the following submissions in support of the proposition that the Commission cannot consider the validity of the Determination: The validity of the Determination (as to whether it is a valid exercise of the power conferred in s. 116A of the HS Act), as noted by Murphy C in Griffin and others [2022] NSWIRComm 1027 at [37], is not a matter for the Commission to determine in its unfair dismissal jurisdiction. As Beech-Jones CJ said in Kassam in relation to the comments of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 with respect to the validity of a public health order made under the Public Health Act: '…The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function'. 1. As to Murphy C's observations in Griffin, the applicant relied on the following passage in the decision of Sloan C in Cromie v Health Secretary in respect of Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064: [21] With respect, the Commissioner's statement that "it is not open to the Commission...to go behind the Health Determination" must be approached with caution. If a case is presented that a dismissal was unfair on the basis that it was the consequence of a determination made pursuant to s 116A of the Health Services Act which is alleged not to be lawful and reasonable, for example, the Commission can and should consider that case. Section 116A confers no particular protection against scrutiny of the Secretary's decisions. 1. The first basis advanced by the applicant as to why the Direction was unlawful, was that when read in context, s 116A in its' entirety requires the consent of the relevant unions as set out in ss 116A(3) and no such consent was provided. 2. The second basis relied on by the applicant in relation to the Direction being unlawful, is that it unilaterally varied the conditions of employment of the applicant. 3. The applicant's third basis as to the unlawfulness of the Determination was that the Vaccination Requirement did not constitute a "condition of employment" for the purposes of s 116A. 4. It was submitted that a "condition of employment" contemplates that employment will be ongoing and subject to that condition, rather than being that the employment will not commence unless the employee carries out an action antecedent to the employment. Along these lines, the applicant contended that the Determination can cover incoming employees, but can't be used to terminate existing employees. 5. The fourth basis advanced by the applicant was that the Determination is invalid because it replicates the PHO requirements in circumstances where s116A provides that the Health Secretary may fix conditions only 'insofar as they are not fixed by or under any other law'. 6. In reply the respondent firstly noted that four members of the Commission have considered the Determination to be valid: 1. Murphy C in Griffin at [49]; 2. Muir C in Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 who found the Determination to be a lawful and reasonable direction at [48]; 3. Sloan C in Cromie at [24]; and 4. Webster C in Adriano at [26]. 1. The respondent submitted that the power under s116A(1) to fix conditions of employment stands alone and is not one which relies on 116(2)-(3). 2. In support of this submission, the respondent relied upon the findings of Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 as to the purpose and history of s116A of the Health Act and in particular, the following paragraphs: [143] The power in s 116A(1) of the HS Act is a distinct and separate power to the power to enter into contracts of employment. This is clear from the ordinary and natural meaning of the text and its purpose. This view is also confirmed by the legislative history and past authorities of the Commission. [144] As set out above, s 116A(1) of the HS Act gives the Secretary the power to "fix" salary, wages and conditions of employment. This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise. [146] The purpose of the power in s 116A(1) is "to ensure a high measure of consistency in a large and diverse public sector organisation": NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees. 1. The respondent also submitted that the approach detailed above by Walton J is consistent with the legislative history of s 116A and its' similarity with the like provision in s.4E(1) of the Public Sector Employment and Management Act 2002 (NSW). 2. As to the Determination and the conditions of employment, the respondent argued that conditions of employment can include mandatory pre-requisites to employment and ongoing mandatory qualifications necessary for the employment. They referred to examples of a childcare worker that must have and hold a valid working with children check and a truck driver must hold a relevant heavy vehicle license. 3. The respondent then proceeded to make the following submission concerning the Determination fixing a condition of employment: 83. As noted in Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163 at [10], the HS Act and the IR Act were enacted in circumstances that they may be considered to be 'cognate'. 84. To that end, the words 'may fix the salary, wages and conditions of employment' in s.116A(1) are to be construed broadly, consistent with the definition of 'conditions of employment' and the definition of 'industrial matter' in ss 4 and 6 of the IR Act. There is no reason to think that questions of vaccination, which can be (and have been for many years) addressed by policy are not conditions of employment within the broad meaning of the IR Act. 85. Further, just as it is an 'industrial matter', matters that relate to workers' health and safety can be 'conditions of employment' as they regulate the nature of part of the relationship between employee and an employer – see Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [186]. 1. As to the conditions of employment in the Determination already set in the Second PHO, the respondent submitted that the Second PHO were not made for the purpose of (and did not have the effect of) fixing conditions of employment for employees of the respondent. 2. The respondent further submitted that the Second PHO were temporary orders made by the Minister for Health and Medical Research pursuant to s. 7 of the Public Health Act 2010 (NSW) for the purposes of dealing with a risk to public health and accordingly are not conditions of employment. 3. In considering the respective arguments concerning the Determination, it is appropriate to set out s116A. 4. Dealing firstly with the respondent's contention that the Commission does not have the jurisdiction to consider the validity of the Determination, the decision of Kassam relied upon by the applicant deals with the Fair Works Commission's jurisdiction in relation to the PHO's and not the Determination. 5. Although both the PHO's and the Determination are instruments made pursuant to statute, there is a stark difference between them, particularly when regard is had to the criminal consequences for contravention of a PHO. In this regard, Kassam does not support the position advanced by the applicant. 6. I agree with the findings of Commissioner Sloan in Cromie that the Commission is able to consider the validity of the Determination when raised by an applicant in an unfair dismissal application. 7. As the applicant has brought into question the validity of the Determination, I am required to consider the applicant's contentions in this regard. 8. As to the first basis as to unlawfulness raised by the applicant, the interpretation advanced is contrary to a plain and ordinary reading of the provision. 9. Each of sub-sections (1) and (3) under 116A, contemplates a different basis upon which the respondent can make a determination, either by unilateral change of conditions of employment as in 116A(1) determined by Walton J in Paramedics or in 116A(3) by agreement with an association or group of employees. 10. The second basis advanced by the applicant, if accepted would result in a perverse outcome that for new employees requiring vaccination, whether it be for Covid-19 or otherwise, would constitute a condition of employment for the purposes of a determination under s 116A(1), but not for existing employees. 11. I accept the respondent's submissions that it does constitute a condition of employment, just as any other change to the requirement to perform work set by legislative instrument or professional bodies do. 12. Also, the second basis is at odds with the finding in Paramedics above at [114], that the power under 116A(1) permits a unilateral variation to the salary, wages and conditions of employment at any time. 13. As to the third basis advanced by the applicant regarding the Determination, it is reliant on the proposition that the obligations under the Second PHO, properly considered, constitute a condition of employment. 14. The obligation under the Second PHO, as determined above and consistent with the applicant's submission was to place a prohibition on employers, including the respondent, from permitting health workers to perform work unless they met the Vaccination Requirements. It was in place for no longer than 90 days and as submitted by the respondent was brought about for the purpose of dealing with a risk to public health and accordingly are not conditions of employment. 15. Given the conclusions I have reached in relation to each of the bases advanced by the applicant in relation to the lawfulness of the Direction, I find that the Direction was lawful and accordingly the applicant has not made out this ground. Procedurally Unfair 1. The applicant submitted that she was not afforded procedural fairness because she did not have notice of the fact that the Chief Executive would consider the Determination as part of the formal dismissal process defined by the show cause notice. 2. It was further submitted by the applicant that she was unaware of the actual factors which the Chief Executive would consider in terminating her employment. The Applicant went on to submit that absent the provision of the above information, she was unable to make a case in reply. 3. It was also submitted that it was procedurally unfair in that the respondent failed to take into account the matters raised by the applicant when the respondent was considering whether to dismiss the applicant. Further, the applicant submitted that in the absence of the respondent calling the Chief Executive a Jones v Dunkel inference could be drawn regarding the consideration of the matters raised by the applicant. 4. The respondent pointed to the Second Show Cause Letter which included reference to and attached the Determination and submitted that there were no other factors, absent those that the applicant was informed of which were taken into account for the termination of the applicant's employment. 5. As to the matters considered by the Chief Executive, the respondent relied on the evidence of Ms McLeish that the Chief Executive considered all the materials in the termination brief, including the applicant's response to the First Show Cause Letter and also considered the applicant's individual circumstances. 6. As to the Jones v Dunkel inference, the respondent submitted that the drawing of such an inference is not open to the Commission. In support of this contention, the respondent pointed to the absence of any material put by the applicant, such as evidence or outlines of submissions, putting the respondent on notice that the Chief Executive ought to be called. 7. Dealing firstly with the Jones v Dunkel inference, it is trite law that the rule only has application when certain conditions exist. These conditions are first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained (see RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [76]). 8. The applicant had not put in her application, evidence nor in her outlines of submissions prior to the hearing that she was advancing a case based on procedural fairness nor, that she was contending that the respondent had failed to consider her response to the First Show Cause letter. Given this, there could have been no basis for the respondent to consider that the Chief Executive should have been called and thus there is no basis for drawing the inference. 9. As to the failure to put the applicant on notice of the matters that would be considered by the respondent including the Determination, this submission has no evidentiary basis. There were no matters relied upon by the respondent that the applicant was not informed of which came to light during the case. As to the Determination, the applicant in the Second Show Cause Letter was informed it was to be relied upon and was provided a copy of it. 10. As to the failure to take into account the matters raised by the applicant, it is important to note that she failed to respond to the Second Show Cause Letter and therefore on one level there was nothing to consider. Notwithstanding this, the evidence of Ms Mc Leish provides a sufficient basis for me to find that the respondent did, in any event consider the applicant's response to the First Show Cause letter as well as the applicant's individual circumstances. 11. Given the above, I am not satisfied that the applicant has made out the procedural fairness ground. Harsh 1. The dismissal was otherwise harsh in view of the Applicant's unblemished and longstanding record of service and significant hardship arising from the termination of her employment. 2. For its' part, the respondent submitted that the Commission as currently constituted found in Welch v Commissioner of Police [2023] NSWRComm 1002 at [74-75], that in balancing all matters that the dismissal of the applicant is justified. 3. Almost all dismissals will occasion hardship upon an individual who has been removed from their employment, but that does not make all dismissals harsh to the level that it renders that dismissal unfair. As I found in Welch it is a matter of weighing up all the circumstances, including the reason(s) for the dismissal as well as the impact upon on the applicant. 4. In this matter, the applicant found herself in the same situation as all other employees who were faced with the prospect of meeting COVID-19 vaccination requirements to maintain her employment. For her own personal reasons, which have no bearing on my consideration of her application, she chose not to. Given this, the harshness visited upon herself is partly a consequence of her own choice and thus does not render the dismissal harsh for the purposes of the IR Act. Disposition 1. Although the applicant has made out her first ground, i.e. that the decision to dismiss on the failure to comply was unjust, the Determination provided a proper basis for the dismissal and the dismissal was not procedurally unfair nor harsh. Overall, for the reasons set above, I find that the dismissal not unfair for the purposes of the IR Act. 2. As the applicant has not made out that the dismissal was unfair there is no need to consider the submissions concerning the Policy and, I make the following order: 1. the application is dismissed ********** Amendments 03 July 2024 - Corrections made to cover sheet 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: 03 July 2024