[2022] FWC 892
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Ashlee Mitchell
v
Kinda Kapers Holdings Pty Ltd
(U2021/10745)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 19 APRIL 2022

Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

[1] Ms Ashlee Mitchell, a university trained early childhood teacher, was employed by Kinda Kapers Toronto Pty Limited (KKT) for about six years. Ms Mitchell was dismissed because she was not able to work in her job in circumstances where a public health order prohibited her from carrying out work at an early education and care facility on or after 8 November 2021 without having had two doses of a COVID-19 vaccine or being issued with a medical contraindication certificate. Ms Mitchell contends that her dismissal was harsh, unjust and unreasonable. KKT denies those allegations.

[2] I heard Ms Mitchell’s unfair dismissal case against KKT on 31 March 2022. Ms Mitchell gave evidence in support of her case. KKT adduced evidence from Ms Michelle Peden, sole director and shareholder of KKT, and Mr Ryan Peden, General Manager of the Kinda Kapers Group, which includes KKT and Kinda Kapers Holdings Pty Ltd.

Relevant facts

[3] Ms Mitchell was employed by KKT in the position of Manager and Educational Leader at the Kinda Kapers Toronto long day care and preschool centre (Toronto Centre). Ms Mitchell was responsible for the education and care of children at the Toronto Centre, as well as ‘setting expectations’ for other staff.

[4] By letter dated 3 September 2020, Mr Scott Morrison, Prime Minister of Australia, responded to correspondence he had received from Ms Mitchell and her husband in relation to COVID-19 vaccines. The letter from Mr Morrison provides in part:

[5] By email dated 28 July 2021, KKT “highly recommended that all staff receive a recommended COVID-19 vaccine as soon as possible”. 1

[6] On 19 August 2021, KKT distributed an email to staff in which they expressed “a goal of close to 100% of staff having at least one shot [of a COVID-19 vaccine] by October. For anyone who is hesitant with getting a vaccine, please discuss with your GP.” 2

[7] By email dated 6 September 2021, KKT informed staff of a recent statement by the Department of Education: 3

[8] By email dated 21 September 2021, KKT informed staff that “currently it appears that all staff will be required to have two doses of vaccine by the 8th of November. To meet this deadline we would strongly recommend all staff get a first COVID vaccine shot as soon as possible and definitely before the 11th of October. Thank you to the >90% of Kinda Kapers staff that have let us know you already received their first shot! If anyone thinks they will have trouble meeting this deadline please reach out to me or Michelle.” 4

[9] On 23 September 2021, Mr Brad Hazard, the New South Wales Minister for Health and Medical Research, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (Public Health Order), which required, among other things, that:

[10] On 29 September 2021, Ms Mitchell sent an email to Mr Peden in the following terms: 5

[11] On 30 September 2021, Mr Peden spoke to Ms Mitchell. They discussed the requirement for staff to be vaccinated against COVID-19. They also discussed the possibility of a medical contraindication. Ms Mitchell informed Mr Peden that she was going to get an appointment with her general practitioner.

[12] Ms Mitchell says that during her discussion with Mr Peden on 30 September 2021 she asked Mr Peden what would happen to staff if they could not be vaccinated and he responded by saying that he was not sure. Mr Peden denies telling Ms Mitchell that he was not sure what would happen to staff if they could not be vaccinated. I prefer Mr Peden’s evidence in relation to this disputed part of the conversation. I find, on the balance of probabilities, that Mr Peden did not tell Ms Mitchell on 30 September 2021 that he was not sure what would happen to staff if they could not be vaccinated. I make that finding for two reasons. First, Mr Peden was aware from the Public Health Order that unless an early childhood worker had a medical contraindication or had been vaccinated against COVID-19, they could not work at an early childcare centre from 8 November 2021. There could have been no doubt in Mr Peden’s mind that Ms Mitchell could not work at the Toronto Centre from 8 November 2021 if she was not vaccinated and did not have a medical contraindication. Secondly, Mr Peden’s understanding in this regard is consistent with his conduct in discussing the possibility of a medical contraindication with Ms Mitchell on 30 September 2021 and following up with an email later that day to the same effect.

[13] Later on 30 September 2021, Mr Peden sent an email to Ms Mitchell in the following terms: 6

[14] Later still on 30 September 2021, KKT provided the following update by email to all staff:

[15] On about 5 October 2021, Mr Peden spoke to Ms Mitchell and asked how she went with her appointment with her general practitioner and the medical contraindication. Ms Mitchell informed Mr Peden that her general practitioner would not sign the medical contraindication certificate and advised her to get vaccinated. Ms Mitchell also informed Mr Peden that she would be seeking advice from another doctor. Mr Peden informed Ms Mitchell that she was running out of time to get two doses of the vaccine by 8 November 2021. Mr Peden also said to Ms Mitchell that he would not call her further regarding vaccination but she should provide further updates on her intentions. I accept Mr Peden’s evidence in his witness statement about his discussion with Ms Mitchell on 5 October 2021. 7 Mr Peden was not challenged about this evidence in his cross examination and Ms Mitchell did not take issue with Mr Peden’s account of the conversation in her reply evidence.8

[16] On about 20 and 26 October 2021, Ms Peden spoke to Ms Mitchell. There is a dispute as to what was said during these discussions. Ms Mitchell says that Ms Peden was very pleasant during these conversations and said that she wanted to support Ms Mitchell where she could. Ms Mitchell denies that Ms Peden mentioned anything about termination of employment during these discussions.

[17] Ms Peden says that her conversations with Ms Mitchell on 20 and 26 October 2021 were in words to the following effect:

[18] Ms Mitchell says that she did not make any reference to a “medical experiment” in her discussions with Ms Peden. Ms Mitchell says that she first used that expression in correspondence sent to Ms Peden on 16 December 2021 in an attempt to negotiate a settlement of her claim. Ms Mitchell also says that Ms Peden did not say on 20 October 2021 that it was not an option for Ms Mitchell to keep working without a medical contraindication certificate or double vaccination or that Ms Peden needed to see a proof of vaccination or a medical contraindication certificate in order for Ms Mitchell to keep working. Ms Mitchell agrees that on 20 October 2021 Ms Peden said words to the effect, “I do not want to lose you. Think about what to do.”

[19] I find, on the balance of probabilities, that Ms Peden did not say to Ms Mitchell in either of their discussions on about 20 and 26 October 2021 words to the effect that Ms Mitchell would be throwing away her job with KKT, or would be terminated, if she did not get vaccinated. The reason I prefer Ms Mitchell’s evidence in relation to these conversations is that Ms Mitchell emailed Ms Peden on the morning of 1 November 2021 to enquire about her options if she was not vaccinated against COVID-19 by 8 November 2021. I consider it unlikely that Ms Mitchell would have drafted and sent such an email to Ms Peden if she had already been told by Ms Peden in clear terms that her employment with KKT would come to an end if she was not vaccinated against COVID-19 by 8 November 2021.

[20] On 24 October 2021, KKT was advised by the NSW Department of Education that NSW Health were aware that a child who had recently attended the Toronto Centre had tested positive to COVID-19. The Toronto Centre was temporarily closed. Ms Mitchell was deemed a close contact and was not able to return to the Toronto Centre for a period of time.

[21] Ms Mitchell had a consultation with her general practitioner in relation to COVID-19 vaccines. Ms Mitchell’s general practitioner advised her that the Pfizer vaccination was safe for people in her situation. Ms Mitchell also had an online telehealth consultation with a doctor in about late October 2021, during which time she asked the doctor questions about COVID-19 vaccinations.

[22] At 7:26am on 1 November 2021, Ms Mitchell sent an email to Ms Peden in the following terms: 9

[23] At 8:59am on 1 November 2021, Ms Peden responded by email to Ms Mitchell in the following terms: 10

[24] At 10:01am on 1 November 2021, Ms Mitchell responded to Ms Peden by email in the following terms: 11

[25] As 1:38pm on 1 November 2021, Ms Peden replied by email to Ms Mitchell in the following terms: 12

[26] At 4:43pm on 1 November 2021, Ms Mitchell responded by email to ask the following questions of Ms Peden: 13

[27] At 9:32am on 2 November 2021, Ms Peden sent an email to Ms Mitchell in the following terms: 14

[28] On 3 November 2021, Mr Peden emailed a letter to Ms Mitchell in the following terms: 15

[29] At 9:46am on 4 November 2021, Ms Peden and sent an email to Ms Mitchell in the following terms: 16

[30] At 3:45pm on 5 November 2021, Ms Mitchell sent an email the following terms to Ms Peden:

[31] At about this time Ms Peden became increasingly frustrated at what she perceived to be Ms Mitchell’s lack of co-operation in developing a plan that would enable her to return to work in compliance with the Public Health Order in the foreseeable future. Ms Peden came to the conclusion that Ms Mitchell not only did not meet the inherent requirements of her job, but that she had no real intention of being vaccinated or being booked in for vaccination by 28 November 2021. Ms Peden says her views in this regard are supported by Ms Mitchell’s email of 5 November 2021. Similarly, Mr Peden considered that circumstances had changed by 11 November 2021 because the original plan was to give Ms Mitchell until 28 November 2021 to have her first dose of a COVID-19 vaccination but it was clear to Mr Peden by 11 November 2021 that Ms Mitchell had not made any arrangements to have her first dose of a COVID-19 vaccine and did not intend to do so.

[32] At 11:12am on 11 November 2021, Ms Peden sent an email to Ms Mitchell in the following terms: 17

[33] At 1:28pm on 11 November 2021, KKT sent an email with the subject “FW: Ash Mitchell” to parents of children attending the Toronto Centre. The email provides:

[34] Ms Peden explained in her evidence that the email was sent to parents of the Toronto Centre on 11 November 2021 so that the parents could be assured that all staff were compliant with the Public Health Order. Ms Peden considered this to be important in circumstances where there had previously been a positive COVID-19 case at the Toronto Centre. Ms Peden also wanted to avoid speculation by parents about the circumstances of Ms Mitchell’s departure. Mr Peden gave evidence that in the childcare industry it was important for parents to understand why an educator who had a relationship with their child was no longer caring for their child.

[35] At 1:50pm on 11 November 2021, Ms Mitchell sent an email to Ms Peden in the following terms: 18

[36] In her oral evidence, Ms Mitchell qualified the statement in her email sent at 1:50pm on 11 November 2021 that she would “be more than happy to receive a COVID-19 vaccine, as long as you can show me where I have signed and agreed to this in my employment contract”. Ms Mitchell gave oral evidence, which I accept to be her true position, that she would also have required evidence and other information to satisfy her that taking a COVID-19 vaccination was safe for her before agreeing to have a first dose of a COVID-19 vaccination.

[37] At 1:59pm on 11 November 2021, Ms Peden resent to Ms Mitchell the email she says was sent on 8 November 2021 relation to Ms Mitchell’s request to take sick leave. The email states: 19

[38] I accept Ms Mitchell’s evidence that she did not receive this email regarding sick leave until 1:59pm on 11 November 2021. Ms Peden did not produce a sent copy of this email in respect of the first suggested transmission on 8 November 2021.

[39] At 2:02pm on 11 November 2021, Ms Mitchell sent an email in the following terms to Ms Peden: 20

[40] At 2:08pm on 11 November 2021, Ms Peden sent an email to Ms Mitchell in the following terms: 21

[41] At 2:09pm on 11 November 2021, Ms Mitchell sent an email to Ms Peterson in the following terms: 22

[42] At 2:42pm on 11 November 2021, Ms Mitchell sent a further email to Ms Peden in the following terms: 23

[43] As at 11 November 2021, Ms Mitchell had not made an appointment to have a COVID-19 vaccination, did not have an appointment booked with a medical practitioner, and had not given KKT any indication of an intention on her part to have a COVID-19 vaccination.

[44] Ms Mitchell arranged for her psychotherapist to write a letter in support of her request for personal leave. The letter was dated 11 November 2021, but was not provided to KKT because Ms Mitchell’s employment had been terminated by the time the letter was prepared.

[45] Mr Peden gave oral evidence, which I accept, that there were no alternative duties available for Ms Mitchell to undertake within any part of the Kinda Kapers Group, nor could Ms Mitchell work from home in her position as Manager and Educational Leader.

[46] Ms Mitchell accepted in her evidence that she would not have had a dose of a COVID-19 vaccine by 28 November 2021 even if she had remained in employment with KKT until 28 November 2021.

[47] On 24 November 2021, Ms Mitchell lodged her unfair dismissal application in the Commission. Part of the relief sought by Ms Mitchell in her unfair dismissal application was her “job back”. On 30 November 2021, KKT lodged its response to Ms Mitchell’s unfair dismissal application in the Commission. In that response KKT stated that it “would be happy to reinstate [Ms Mitchell] immediately if documentary evidence of vaccination or a certificate of medical contraindication was provided by Ashlee”. Ms Mitchell did not take up that offer. She could not do so because she was not vaccinated against COVID-19 and did not have a medical contraindication certificate.

[48] Although the Public Health Order was repealed and remade with minor changes on 16 December 2021 and 11 March 2022, the requirement for education and care workers to be vaccinated against COVID-19 or hold a medical contraindication certificate remains in place under the current public health order.

[49] At the time of the hearing Ms Mitchell had not sought any employment in the childcare industry because she remains unvaccinated against COVID-19 and does not have a medical contraindication certificate. Ms Mitchell says that she is not opposed to vaccination against COVID-19, but she needs more information and evidence concerning risks and other matters before she decides whether to be vaccinated against COVID-19. That is a personal decision which Ms Mitchell is entitled to make. It does, however, have an impact on her ability to obtain employment in particular industries such as the education industry.

Initial matters to be considered

[50] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.

[51] There is no dispute between the parties and I am satisfied on the evidence that:

Was the dismissal harsh, unjust or unreasonable?

[52] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Mitchell’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

[53] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 24 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”25 and should not be “capricious, fanciful, spiteful or prejudiced.”26

[54] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 27 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).28

[55] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.29 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 30

[56] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 31

Consideration re valid reason

[57] Once a public health order made under s 7 of the Public Health Act 2010 (NSW) (PH Act) is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order, as are the employees in the workplace, unless or until the order is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid or unlawful. 32 The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.33

[58] The New South Wales Court of Appeal has determined that the Public Health Order was not invalid. 34

[59] Ms Mitchell’s paid agent, Mr Zev Friedlaender, a self-styled ‘warrior at law’ (but not a lawyer), submitted that Ms Mitchell is not challenging the validity of the PH Act or the Public Health Order, but proceeded to make a range of arguments as to why the Public Health Order did not apply to Ms Mitchell. I reject each of these arguments, for the reasons set out below.

[60] Mr Friedlaender submits that the Public Health Order did not impose a legal requirement on Ms Mitchell because laws in Australia are only made if passed by a majority vote in the Senate and the House of Representatives; the Public Health Order was not made through this process, with the result that it is not ‘law’. I reject these contentions. Mr Hazard made the Public Health Order under s 7 of the PH Act, which empowers the Minister, if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health, to take such action and by order give such directions as the Minister considers necessary to deal with the risk and its possible consequences. An order made under s 7 of the PH Act does not have to be passed by both houses of Parliament in order for it to impose legal obligations on citizens in New South Wales.

[61] Mr Friedlaender contends that the Public Health Order was not binding on Ms Mitchell because she was not in receipt of it, nor was Ms Peden, KKT or Kind Kapers Holding Pty Ltd. In support of this argument Mr Friedlaender relies on s 62 of the PH Act. It provides:

62 Making of public health orders relating to person with Category 4 or 5 condition or contact order condition (cf 1991 Act, s 23)

[62] The requirement in subsection 62(8) of the PH Act for a public health order to be served personally on the person subject to the order must be read in the context of s 62 as a whole. Section 62 is a different source of power to make a public health order than s 7 of the PH Act. There are significant differences between public health orders made under s 62 of the PH Act compared to those made under s 7. First, under s 62 an “authorised medical practitioner” may make a public health order, whereas the Minister is the only person authorised to make a public health order under s 7. Secondly, under s 62 an “authorised medical practitioner” may make a public health order “in respect of a person … if the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health” [emphasis added]. Schedule 1 to the PH Act defines what is meant by a Category 4 or 5 condition. Category 4 includes COVID-19. Thirdly, a public health order made under s 62 “must name the person subject to the order”. In contrast, s 7 of the PH Act empowers the Minister to make an order which applies to any part of the State, not in respect of one or more identified persons. Fourthly, s 62 is a power directed to treating and preventing the spread of a particular disease that one or more persons have or to which they have been exposed. Section 7 is a power directed to deal with public health risks generally and enables directions to be given by order which address the overall risk and its possible consequences. 35 Having regard to those different features of s 62 compared with s 7, it is not surprising that a public health order made under s 62 does not take effect until it is served personally on the person subject to the order. There is no such requirement for a public health order made under s 7 of the PH Act. Mr Friedlaender’s argument that “public health order” is defined in s 5 of the PH Act to mean “a public health order referred to in section 62” is of no significance because an order made under s 7 of the PH Act is not a “public health order” within the meaning of s 5. An order made under s 7 of the PH Act is simply an order which is “directed to a situation has arisen that is, or is likely to be, a risk to public health”.36

[63] Mr Friedlaender contends that the Public Health Order was not binding on Ms Mitchell or anybody else because it was not signed by the Minister. I reject this argument. Section 7(4) of the PH Act provides that “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”. The Public Health Order was published in the Government Gazette on 23 September 2021. The PH Act does not, by its terms, impose a requirement that a public health order must be signed in order for it to be valid or enforceable.

[64] Mr Friedlaender says that he has not been able to find any evidence that the PH Act was proclaimed, with the result that the PH Act may not have commenced operation in accordance with s 2 which states that the PH Act “commences on a day or days to be appointed by proclamation”. As I have explained above, the Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. 37 In any event, it is apparent from the NSW Government Gazette published on 10 December 2010 that the Governor of NSW assented, on 7 December 2010, to the PH Act, which had been passed by the Legislative Assembly and Legislative Council of New South Wales in Parliament.

[65] Mr Friedlaender contends that the Public Health Order is inconsistent with federal law, including the Biosecurity Act 2015 (Cth), and therefore invalid pursuant to s 109 of the Constitution. The Commission does not have jurisdiction to determine this issue. In any event, I do not consider the argument to have any merit. Section 60 of the Biosecurity Act empowers particular officers to impose a human biosecurity control order on an individual if the officer is satisfied that the individual has one or more symptoms of a listed human disease, the individual has been exposed to a listed human disease or another person who has signs or symptoms of such a disease, or the individual has failed to comply with an entry requirement in relation to a listed human disease. I do not consider there to be any merit to the suggestion that the power to make an order under s 7 of the PH Act to deal with risks to public health alters, impairs or detracts from the operation of the Biosecurity Act. As to indirect inconsistency, the Biosecurity Act does not, in my opinion, leave no room for the operation of the PH Act. The Biosecurity Act and the PH Act, or the Public Health Order, address different topics. The former, in s 60, being the risks associated with symptoms of, or exposure to, a listed human disease, and the latter being the imposition of measures to deal with public health risks generally.

[66] Mr Friedlaender relies on s 51(xx) of the Constitution. That provision empowers the Commonwealth Parliament to make laws with respect to, among other things, trading or financial corporations such as KKT. That is uncontroversial, but it does not assist the argument that the Public Health Order did not apply to Ms Mitchell.

[67] Mr Friedlaender contends that the Public Health Order amounts to a form of civil conscription proscribed by s 51(xxiiiA) of the Constitution. This argument was rejected by the Supreme Court in Kassam as follows: 38

[68] Mr Friedlaender contends that the Public Health Order is not enforceable because it is contrary to the International Covenant on Civil and Political Rights. This argument is misconceived. International covenants have domestic effect in Australia only to the extent that they have been incorporated into domestic legislation. 39 Mr Friedlaender did not point to any legislation which he says incorporates any relevant international covenants.

[69] Mr Friedlaender contends that KKT did not have the power or authority to enforce the Public Health Order. This argument is misconceived. Paragraph 4(3) of the Public Health Order required KKT to “take all reasonable steps to ensure that the education and care worker complies” with the requirement not to carry out work in an early education and care facility on or after 8 November 2021 unless the worker had two doses of a COVID-19 vaccine or had been issued with a medical contraindication certificate. KKT would have been in breach of this obligation had it permitted Ms Mitchell to perform work at the Toronto Centre on or after 8 November 2021.

[70] Mr Friedlaender relies on sections 14, 26 and 27 of the Act. They do not assist his argument. There is no doubt that KKT is a “national system employer” within the meaning of s 14 of the Act. Sections 26 and 27 of the Act deal with the interaction between the Act and particular State and Territory industrial laws. Those provisions do not have any work to do in the context of the Public Health Order or Ms Mitchell’s unfair dismissal case.

[71] Mr Friedlaender argues that there is no provision in Ms Mitchell’s contract of employment which required her to be vaccinated against COVID-19. That is correct. However, the absence of a contractual term does not matter in circumstances where the source of the prohibition on working at a childcare centre without being vaccinated against COVID-19 or having a medical contraindication is a public health order made under the PH Act.

[72] Mr Friedlaender also contends that the requirement that Ms Mitchell be vaccinated against COVID-19 was inconsistent with the correspondence she received from Mr Scott Morrison in which the Prime Minister said that “vaccination is not compulsory in Australia and it will not be compulsory to have a COVID-19 vaccine”. I reject this argument. The Public Health Order does not make vaccination against COVID-19 compulsory. The Public Health Order requires certain workers, including education and care workers such as Ms Mitchell, to have had two doses of a COVID-19 vaccine or been issued with a medical contraindication certificate to work in an early education and care facility on or after 8 November 2021. Ms Mitchell had a choice as to whether or not to be vaccinated against COVID-19. Ms Mitchell found it a difficult choice to make. But it was her free and informed choice to make. The consequence of her choice is that Ms Mitchell could not work in an early education and care facility on or after 8 November 2021.

[73] There is no dispute, and I am satisfied on the evidence, that when Ms Mitchell was employed by KKT:

[74] Accordingly, the Public Health Order applied to Ms Mitchell in relation to her employment with KKT. The effect of the Public Health Order was to prohibit Ms Mitchell from working at an early education and care facility on or after 8 November 2021 unless she had two doses of a COVID-19 vaccine or had been issued with a medical contraindication certificate.

[75] There is no dispute that Ms Mitchell did not, prior to 8 November 2021, have any doses of a COVID-19 vaccine, nor had she been issued with a medical contraindication certificate. It follows that Ms Mitchell was prevented, by reason of the Public Health Order, from undertaking any work at an early education and care facility on or after 8 November 2021.

[76] Ms Mitchell was not able to fulfil the requirements of her role as the Manager and Educational Leader at the Toronto Centre from 8 November 2021. There were no alternative duties available for Ms Mitchell to undertake. As at 11 November 2021, there was nothing to suggest that the Public Health Order would or was likely to be varied or rescinded such that Ms Mitchell would be permitted to work in an early childhood centre at any time in the foreseeable future. Ms Mitchell had weeks prior to her dismissal to consider whether she would be vaccinated against COVID-19. She gave no indication to KKT that she had any plan or intention to be vaccinated against COVID-19 at any time in the foreseeable future. If KKT had permitted Ms Mitchell to enter her workplace at the Toronto Centre on or after 8 November 2021, it would have been in breach of the Public Health Order and exposed to financial penalties. There was in effect a new regulatory requirement that attached to Ms Mitchell’s job. 40 She could have decided to take the necessary steps to meet the requirement. She decided not to do so. For all these reasons, KKT had a sound, defensible and well founded reason to terminate Ms Mitchell’s employment.

[77] I am satisfied that KKT had a valid reason to terminate Ms Mitchell’s employment.

Notification of reason (s 387(b))

[78] Ms Mitchell was notified of the reason for her dismissal in the email informing her of her termination and the communications with her in the period leading up to that email. Ms Mitchell was on notice from 1 November 2021 that her employment would be terminated if she did not have a COVID-19 vaccination or a medical contraindication certificate.

Opportunity to respond (s 387(c))

[79] Ms Mitchell was given opportunities to respond to the reason for her dismissal after she was notified, on 1 November 2021, of the fact that her employment would be terminated if she did not have a COVID-19 vaccination or a medical contraindication certificate.

[80] Having regard to all the circumstances, I am satisfied that Ms Mitchell was given an opportunity to respond to the reason for dismissal related to her capacity.

Unreasonable refusal to allow a support person (s 387(d))

[81] Ms Peden did not have any in-person discussions with Ms Mitchell relating to her dismissal. All relevant communications at that time were by email. Ms Mitchell did not make a request for a support person to attend any meetings with Ms or Mr Peden.

[82] In all the circumstances, I am satisfied that there was not any unreasonable refusal by KKT to allow Ms Mitchell to have a support person present to assist in any discussions relating to her dismissal.

Warnings of unsatisfactory performance (s 387(e))

[83] Ms Mitchell was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[84] The Kinda Kapers Group operates seven childcare centres. It employs about 110 staff, about 22 of whom work at the Toronto Centre. The Kinda Kapers Group does not have any human resources specialists or expertise. It obtains advice from external sources on human resources issues when required.

[85] In all the circumstances, I am satisfied that neither the size of KKT’s enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Ms Mitchell’s dismissal.

Other relevant matters

[86] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[87] I take into account the fact that Ms Mitchell was employed in the Kinda Kapers Group for about six years and she had an excellent employment record. KKT did not want to lose Ms Mitchell as an employee.

[88] Ms Mitchell was initially told that she would be stood down from 8 November 2021 until 28 November 2021 and a decision about the termination of her employment would be made on 28 November 2021. KKT changed its position on that course of action without any prior warning to Ms Mitchell. In the result, Ms Mitchell was dismissed on 11 November 2021, by email, without the benefit of an in-person discussion. I am satisfied that this change in position, without prior warning or discussion, does weigh in support of Ms Mitchell’s argument that her dismissal was harsh and unreasonable. However, Ms Mitchell accepted in her evidence that even if her employment had continued until 28 November 2021, she would not have had a first dose of a COVID-19 by 28 November 2021. It follows that if the dismissal had not taken place on 11 November 2021 it would have taken place on 28 November 2021 and in the period between 11 and 28 November 2021 Ms Mitchell would not have been in any receipt of wages because the Public Health Order meant that she was not able to work in her job at the Toronto Centre during this time. This reduces the weight that I will attribute to this matter in my overall assessment as to whether Ms Mitchell’s dismissal was harsh, unjust or unreasonable.

[89] Mr Friedlaender contends that KKT reneged on Ms Mitchell’s right to take sick leave in November 2021. I reject that contention. In the letter from Mr Peden dated 3 November 2021, Ms Mitchell was informed that being stood down would not break her employment relationship and her benefits including personal leave would be maintained. This did not authorise Ms Mitchell to take any particular period of personal leave. It simply informed Ms Mitchell that she would not lose her accrued personal leave by reason of being stood down. At 3:45pm on Friday, 5 November 2021, Ms Mitchell informed KKT that she would “be taking sick leave for the foreseeable future”. Ms Peden’s response to this email was not received by Ms Mitchell until 11 November 2021. However, I consider the substance of the response to be correct, namely Ms Mitchell did not have a right to take personal leave at a time when she was not able to work because she had elected not to meet the requirements of the Public Health Order. 41 In all the circumstances, this matter does not weigh in support of Ms Mitchell’s contention that her dismissal was harsh, unjust and unreasonable.

[90] By email sent on 1 November 2021, Ms Peden informed Ms Mitchell that she was being stood down. Ms Peden explained in her email that Ms Mitchell was being stood down because the Public Health Order meant that she could not, as an unvaccinated person, work at the Toronto Centre and there were no alternative duties available for her. Ms Peden also made reference in her email to Ms Mitchell to s 524 of the Act, which permits an employer to stand down an employee where the employee cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. It was erroneous of Ms Peden to make reference to s 524 of the Act in her email to Ms Mitchell. There was no relevant stoppage of work. Notwithstanding that error, the balance of Ms Peden’s email was fine and provided a true and correct explanation for the stand down. Further, Mr Peden explained in his letter to Ms Mitchell of 3 November 2021 that she was being stood down and gave the correct explanation for that decision, without any mention of s 524 of the Act. There is no doubt that Ms Mitchell was not able, by reason of the Public Health Order, to work at the Toronto Centre from 8 November 2021. There were no alternative duties available for her. Ms Mitchell did not have any right to receive wages from KKT in respect of the period on and after 8 November 2021. In all the circumstances, I do not consider that the erroneous reference to s 524 of the Act in the email from Ms Peden to Ms Mitchell on 1 November 2021 gave rise to any material unfairness. This matter does not weigh in support of Ms Mitchell’s contention that her dismissal was harsh, unjust and unreasonable.

[91] I do not accept the contention advanced on behalf of Ms Mitchell that she was not consulted with prior to being required to be vaccinated against COVID-19 in order to keep working at the Toronto Centre. The first point to make in this regard is that KKT did not make the decision to require its staff to be vaccinated against COVID-19. That decision was made by Mr Hazard, the relevant Minister of the New South Wales Government. It follows that Ms Mitchell’s complaint about not being provided with a risk assessment by KKT is without merit. It did not matter how KKT assessed the risks. Once the Public Health Order was made, KKT was legally obliged to comply with it, as was Ms Mitchell.

[92] Because the decision to impose the requirement to be vaccinated against COVID-19 in order to work at a childcare centre from 8 November 2021 was not taken by KKT, the consultation which KKT was required to undertake was primarily directed at the implementation of the requirements of the PHO. 42 I consider that KKT did consult genuinely and effectively with its staff, including Ms Mitchell, about the imposition of the requirement to be vaccinated against COVID-19 and the implementation of that requirement. So much is clear from the written and oral communications to which I have referred above. Those communications commenced in about July 2021 and continued until the termination of Ms Mitchell’s employment on 11 November 2021. KKT kept its staff informed of the likely requirement to be vaccinated against COVID-19. It encouraged staff to become vaccinated at an early time and provided links to a range of information from external bodies about COVID-19 and vaccinations. When the Public Health Order was made, KKT informed its employees about it and its requirements. KKT provided its staff with access (through a link in an email) to a copy of the Public Health Order. KKT made repeated invitations for staff to speak with Ms or Mr Peden if they wished to discuss their personal situation. Ms Mitchell had a number of individual discussions with each of Ms and Mr Peden in relation to the imposition of the requirement for Ms Mitchell to be vaccinated against COVID-19 in order to keep working at a childcare centre from 8 November 2021. I am satisfied that Mr and Ms Peden gave proper consideration to the matters raised by Ms Mitchell in her communications with them about the requirement to be vaccinated and its consequences for Ms Mitchell.

[93] Mr Friedlaender contends that Ms Mitchell did not give, and was not given an opportunity to provide, her free and informed consent to having a COVID-19 vaccination in accordance with the requirements of the Australian Immunisation Handbook. I do not accept this argument. Ms Mitchell was given every opportunity to give her free and informed consent to having a COVID-19 vaccination. She elected not to give her consent prior to 11 November 2021. Since that time Ms Mitchell has continued to make the same decision. She elects to remain unvaccinated against COVID-19. That is her free choice. The fact that the Public Health Order prohibited Ms Mitchell from working in an early childcare facility from 8 November 2021 did not rob Ms Mitchell of her choice of whether or not to be vaccinated.

[94] Ms Mitchell complains that she was not given notice of termination or a payment in lieu of notice. That is factually correct. KKT has not contended, and nor could it reasonably contend, that it had a right to summarily dismiss Ms Mitchell. The fact that an employee has been dismissed without notice when the employee’s conduct did not warrant summary dismissal may be relevant to consider under s 387(h) of the Act. 43 However, in the present case Ms Mitchell did not have the capacity to work at her workplace from 8 November 2021. Accordingly, even if KKT had provided Ms Mitchell with actual notice of termination and her employment had continued for a further four weeks, she would not have been entitled to any wages during that period. Having regard to all the circumstances, my evaluative assessment is that the failure to provide notice of termination or a payment in lieu of notice weighs in support of Ms Mitchell’s contention that her dismissal was harsh and unreasonable, but the weight to be attributed to this matter is ameliorated by reason of the fact that Ms Mitchell would not have been entitled to the payment of any wages if she had been given notice of her termination.

[95] Ms Mitchell does not contend that KKT’s conduct in seeking information about her vaccination status was a breach of privacy. Ms Mitchell argues that a privacy breach occurred on 11 November 2021 when Ms Peden sent an email to the parents of children at the Kinda Kapers Toronto centre in which Ms Peden disclosed Ms Mitchell’s personal private medical information without her consent. Ms Mitchell contends that this was a privacy breach pursuant to the Privacy Act 1988 (Cth). Mr Friedlaender informed the Commission that separate proceedings may be commenced by Ms Mitchell in another jurisdiction concerning the alleged breach of the Privacy Act. In those circumstances, I do not consider it appropriate or necessary that I make a determination or express an opinion, as part of my overall assessment concerning the fairness of Ms Mitchell’s dismissal, as to whether KKT breached the Privacy Act. However, I will take into account the disclosure by KKT of Ms Mitchell’s vaccination status to parents of the Toronto Centre as a relevant “other matter” under s 387(h) of the Act. Although Ms Peden was truthful when she stated in her email to parents that Ms Mitchell “remains unvaccinated” and Ms Peden made positive comments to the parents about Ms Mitchell, such as she was "an extremely valued member of our team” and “we are very sad and disappointed that Ash can no longer be a part of the Kinda Kapers team”, the email to parents did disclose information about Ms Mitchell’s vaccination status in circumstances where Ms Mitchell had not consented to that disclosure. Ms Mitchell’s vaccination status was personal information about her health. In my view, Ms Mitchell had a legitimate and reasonable expectation that her vaccination status would not be disclosed by her employer to third parties without her consent. I accept that Ms Mitchell was genuinely upset when she was informed that her vaccination status had been disclosed to a large number of parents of the Toronto Centre. KKT could have informed parents that all staff of the Toronto Centre were vaccinated against COVID-19 in accordance with the requirements of the Public Health Order and then explained that Ms Mitchell, a valuable member of staff, unfortunately could no longer work at the centre. In all the circumstances, I accept that KKT’s disclosure of Ms Mitchell’s vaccination status in the email to parents weighs in favour of her argument that her dismissal was harsh.

Conclusion

[96] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that KKT’s dismissal of Ms Mitchell was not harsh, unjust or unreasonable. KKT consulted with Ms Mitchell in relation to the requirement for her to be vaccinated against COVID-19 if she wished to continue to work in a childcare centre. KKT had a valid reason for the dismissal and it afforded procedural fairness to Ms Mitchell prior to making a decision to bring her employment to an end. KKT clearly valued Ms Mitchell as an employee and wanted to retain her as an employee at the Toronto Centre. But KKT was legally obliged to comply with the Public Health Order. The effect of the Public Health Order was that Ms Mitchell was unable to undertake her job from 8 November 2021. There were no alternative duties available for Ms Mitchell. In my overall assessment, these matters outweigh the fact that (a) Ms Mitchell had an excellent employment record, and was a well-regarded and valued employee, during her six years of employment with KKT, (b) there was a change in position, without prior warning or discussion, when KKT dismissed Ms Mitchell on 11 November 2021 rather than keep her in employment until 28 November 2021, (c) Ms Mitchell was not provided with notice of termination or a payment in lieu of notice, and (d) KKT disclosed Ms Mitchell’s vaccination status to parents of the Toronto Centre shortly after her dismissal on 11 November 2021.

[97] I am satisfied that KKT’s dismissal of Ms Mitchell was not unfair within the meaning of the Act. The application is dismissed.

unders C - Signature and Seal

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740453>

Appearances:

Mr Z Friedlaender, for the Applicant

Mr J Stanton, for the Respondent

Hearing details:

2022.

Newcastle (by videoconference)

31 March.

 1   Hearing Book at p 98

 2   Hearing Book at p 146

 3   Hearing Book at p 102

 4   Hearing Book at p 104

 5   Hearing Book at p 106

 6   Hearing Book at p 106

 7   Hearing Book at p 126 [24]

 8   Hearing Book at p 166 [point 24]

 9   Hearing Book at pp 112-3

 10   Hearing Book at pp 111-112

 11   Hearing Book at p 111

 12   Hearing Book at p 110

 13   Hearing Book at p 110

 14   Hearing Book at p 45

 15   Hearing Book at pp 49-50

 16   Hearing Book at p 51

 17   Hearing Book at p 118

 18   Hearing Book at p 117

 19   Hearing Book at p 119

 20   Hearing Book at p 60

 21   Hearing Book at p 116

 22   Hearing Book at p 116

 23   Hearing Book at p 116

 24   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]

 25   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]

 26   Ibid

 27   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]

28 Ibid

29 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 30   Ibid

 31   Ibid

 32   Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [68]

 33   Stevens v Epsworth Foundation [2022] FWC 593 at [26]

 34   Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

 35   Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [39]; Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 at [54]

 36   Section 7(1) of the PH Act

 37   Stevens v Epsworth Foundation [2022] FWC 593 at [26]

 38   at [9] and [11(iv)]

 39   Stevens v Epworth Foundation [2022] FWC 593 at [26]

 40   Stevens v Epworth Foundation [2022] FWC 593 at [24]

 41   Wilkinson v Eastern Health [2022] FWC 260

 42   CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [197]

 43   Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]