| [2022] FWC 1269 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory John Casper
v
New Horizons
(U2021/11580)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 24 MAY 2022 |
Application for relief from unfair dismissal – lawful and reasonable direction requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
[1] Mr Gregory Casper was employed by New Horizons Enterprises Limited (New Horizons) in the position of Case Worker. Mr Casper was dismissed by New Horizons on 29 November 2021 for three reasons, one of which concerned his non-compliance with New Horizon’s direction that he had to be vaccinated against COVID-19, unless he had a medical contraindication, in order to continue working in his job. Mr Casper contends that his dismissal was harsh, unjust and unreasonable. New Horizons denies those allegations.
[2] I heard Mr Casper’s unfair dismissal case, by video conference, on 12 April 2022. Mr Casper gave some very brief evidence in support of his case. He was not required for cross examination. Mr Raymond Miles, Acting General Manager (People Excellence), gave evidence for New Horizons and was cross examined by Mr Casper’s representative, Mr Smith.
Relevant facts
[3] Mr Casper worked for New Horizons in a service known as Supporting and Securing Tenancies (SST), which provides support to people who are at imminent risk of becoming homeless or are experiencing homelessness. The SST program is funded by the New South Wales Department of Communities and Justice (DCJ).
[4] Mr Miles gave the following unchallenged evidence, which I accept, in relation to Mr Casper’s role of Case Worker in the SST program: 1
“Case Workers are at the front line of delivering New Horizons’ SST Service. Case Workers are responsible for collaborating with customers to implement plans, build individual and family capacity, enhance living skills resilience, and community engagement; and assist with finding suitable long-term accommodation. Ordinarily, Case Workers provide this service by meeting with customers face-to-face.”
[5] In September 2021, the DCJ corresponded with New Horizons in relation to the management of COVID-19 in the delivery of the SST service. The DCJ informed New Horizons that it was developing a policy regarding COVID-19 vaccination, with which New Horizons and its employees would be required to comply. New Horizons then communicated with its employees about the DCJ’s expectations in that regard.
[6] On 13 October 2021, the DCJ wrote to New Horizons and confirmed that it had implemented a policy regarding the management of COVID-19. That policy required, among other things, that New Horizons carry out a risk assessment and require workers to be vaccinated against COVID-19 if New Horizons determined that vaccination was reasonably practicable in the circumstances to control the risk of COVID-19.
[7] Throughout the second half of October and early November 2021, New Horizons invited Mr Casper and other employees to be part of an ongoing risk assessment process in relation to the management of COVID-19. Mr Casper initially expressed an interest in being part of that process, but when he was asked to meet to discuss the risk assessment, Mr Casper informed New Horizons that he was “waiting to hear back from the ASU in regards to a time so they can support me through this process” 2. Later Mr Casper declined the offer “for a meeting in regards to the risk assessment”.3
[8] I am satisfied, on the basis of an unchallenged record of conversation annexed to Mr Miles’s statement, that on 8 November 2021 Mr Casper made comments to Ms Nikki Werner, one of Mr Casper’s work colleagues, that he was “going to take all management down … going to get 5 white feathers and place these on managements desk … as they represent cowardness … everyone that gets the booster shot will be dead … management … were all going to pay in some form”. 4
[9] On 11 November 2021, New Horizons sent a copy of its “live” risk assessment to its employees and asked for feedback in relation to it. 5 The risk assessment states in part:
“The main risk to New Horizons’ staff is contracting COVID-19 as a result of our service interactions with customers who have the virus, as the service must be open to the public via our shopfronts in Port Macquarie, Kempsey and Coffs Harbour. We must also undertake assertive outreach in person to successfully deliver the SST service.
In a recent NSW supreme court ruling, the efficacy of vaccinations was once again reiterated in the ruling which stated:
“the Judge accepted the view supported by the weight of proper scientific opinion that COVID-19 vaccines reduce the risk of infection and transmission of the disease, attenuate the symptoms and possible consequences, and generally only have mild to moderate short-term side effects.” Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021)
Conclusion: Noting the evidence that an approved Covid vaccination reduced both the likelihood and the consequence of the risk of getting Covid 19, this risk assessment has concluded that in order to get the residual risk to an acceptable level to meet our obligations under the Work Health and Safety Act, it is necessary to have all New Horizons staff in the SST service vaccinated for their safety, the safety of others and the continuity of the service.”
[10] Mr Miles explained in his oral evidence that New Horizons did not obtain or review any medical or scientific evidence when preparing its risk assessment. Instead, it relied on the findings made by the Supreme Court of New South Wales as to the “weight of proper scientific opinion” before the court in Kassam v Hazzard. 6
[11] On 16 November 2021, Mr Casper and other New Horizons employees were invited to participate in a survey in relation to the risk assessment circulated to employees five days earlier. Mr Casper declined to participate in the survey. 7 Also on 16 November 2021, Mr Casper sent an email to his Team Leader in the following terms:8
“Good morning
I decline your offer for a meeting in regards to the Risk assessment. I cannot see with the current health order how I would benefit from a meeting.
I do suggest that NH could bring in rapid testing for people who have choose [sic] to not take the CV19 preventative treatment. This treatment is still in trial phase until 2023 so cannot be called a vaccine.
If New Horizons could advise me via writing that if I chose to have this trial treatment that they will support me and my family financially and Mentally if something does wrong i.e. Heart problems, Blood clots, Loss of sight etc I may choose to take the trial treatment.
Until I receive this in writing I will not be extorted to take this trial treatment.
I believe that the punishment for extortion is up to 5 years imprisonment. I would hate to see this happened to people that I did admire and enjoy working with.
By … Gregory John Casper
All rights reserved”
[12] At 10:22am on 16 November 2021, Mr Casper sent an email in the following terms to a many of New Horizons’ employees: 9
“Hi All NH staff,
My name is Greg and I have been working for NH since 2016. I had one year off during this period and travelled Australia with my young family.
Whilst working for NH I have worked on many programs.
These being:
HASI
SST (Homelessness)
YPIRAC
Tribal Dreaming
Way back program ( Suicide Prevention)
I have also been a Team Leader and acting CSM at times.
During all these years I have never had any issues or been reprimanded for poor work ethics.
The reason for this letter is to advise you that I feel that my days are numbered as I have chosen not to be extorted or coerced into taking the CV19 preventative treatment. I feel that I should have a choice about this as I believe that we live in a democratic society. But, by not taking this experimental treatment I am now forced to work from home. I have had no support from anybody in the company except to call EAP. I did email People and excellence but never got a reply.
The ASU have tried but have been unable to support me as they are Pro CV19 Preventative treatment. ( Not a vaccine as it is still on trial till 2023)
For those that chose to take this trial treatment I believe that this is your choice as was mine.
For those who live in the Sydney area I also understand. Who doesn’t want freedom.
For those who were coerced/extorted into taking it because of job security I totally get it. I believe you all to be the majority.
This is my truth”
[13] At 12:03pm on 16 November 2021, Mr Miles responded to Mr Casper’s email. In his response Mr Miles:
(a) recommended that Mr Casper speak with his doctor in relation to his concerns about COVID-19 vaccines;
(b) informed Mr Casper that New Horizons had undertaken a risk assessment, as required by the DCJ, and the outcome of that assessment was that vaccination against COVID-19 was required for employees in Mr Casper’s job classification;
(c) informed Mr Casper that in order to attend work and do his job he was required to provide evidence that he had been vaccinated against COVID-19, unless he had a medical contraindication;
(d) informed Mr Casper that he would commence leave from 17 November 2021 until he was vaccinated, with his leave to be processed in the order of accrued annual leave, accrued RDOs, accrued time of in lieu, and leave without pay;
(e) asked Mr Casper to return all New Horizons’ property before his leave commences;
(f) instructed Mr Casper to cease distributing emails containing his personal “viewpoints” to New Horizons’ employees and customers;
(g) instructed Mr Casper to send any further communications to Mr Miles, and not to correspond with New Horizons’ CEO, Chief Customer Service Officer or other employees; and
(h) mistakenly made references to a requirement to be vaccinated under a public health order. Mr Miles accepted in his oral evidence that there were no public health orders that applied to Mr Casper in relation to his employment with New Horizons.
[14] Mr Casper responded to Mr Miles’s email, stating “I decline your offer”. 10 Further emails were exchanged between Mr Miles and Mr Casper on the afternoon of 16 November 2021. Mr Miles reminded Mr Casper that he remained employed by New Horizons. Mr Casper agreed to drop off New Horizons’ property the following day.
[15] At 5:27pm on 16 November 2021, Mr Casper forwarded a letter in the following terms to Mr Richard Gregg, the Chief Executive Officer of New Horizons: 11
“NOTICE TO PRINCIPAL IS NOTICE TO AGENT,
NOTICE TO AGENT IS NOTICE TO PRINCIPAL
Date: …16./…11./…2021……..
To: ……Richard Gregg…………………………………….
Re: Request (offer of contract) to participate in medical service including, but not limited to, diagnostic, therapeutic or preventative services including vaccination, medical testing and face masks.
On the basis of fact that as a living Man, Woman, or any variation thereof = person(s) in law = people in law = vessel(s) in commerce only. Thereby, fully retaining all COMMONWEALTH CONSTITUTIONAL RIGHTS in LAWS / ACTS / RULES at all times.
Be aware that:
1. All contractual agreements prohibit any unlawful directions or actions or promotion of unlawful directions or actions, either directly or indirectly at all times. Unlawful directives or unlawful acceptance of directives are criminal in nature and a breach of our contractual agreement.
2. The doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care, no third party can exist at any time. My personal medical information is strictly protected under Federal Law including, but not limited to, provisions under the Privacy Act 1988.
3. No medical service can be forced against my free will and is strictly prohibited under sect 51(xxiiiA) of the Australian Constitution which guarantees protections and prohibitions, within the Commonwealth Constitution.
4. All State constitutions, Laws, Acts, Rules, are subject to the Commonwealth Constitution pursuant to section 109 which states, when a law of the State is inconsistent with the law of Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be considered null and void at all times.
5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State
6. Australian businesses are bound by Federal and Constitutional laws thereby, negating State legislation, orders, and directives inconsistent with Federal Law at all times.
7. Where no Bio Security Order has been made against me, the individual living Man, Woman or any variation thereof (person in law), under the directions by an authorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015, no other order can be lawfully imposed at any time.
8. Medical services coerced or forced upon me, a living Man, Woman or any variation thereof (person in law), without my acceptance and under intentional infliction of extreme psychological duress and financial hardship would constitute assault and abuse and carry with it substantial criminal penalty including imprisonment.
9. Any threats imposed on me the living man, woman or any variation thereof (person in law) to submit to directions or policies directing me to self-harm against my will, or restrict or invalidate my inalienable human rights to decline such offers, creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times.
Due to the seriousness of your demand with menace being sought, I request your valid proof of claim with physical material evidence within 72 hours that your Policy / Request / Demand is lawful and reasonable based on the Constitutional guarantees stated above.
Should I not receive your response by the close of business 19/11 /2021, I will consider this your tacit agreement that you accept that your policy, directions and actions are unlawful and unreasonable and that you accept my lawful right to decline all offers now or in the future as I see fit.
Your faithfully,
GREGORY JOHN CASPER
ALL RIGHTS RESERVED
This document was prepared by De Cline”
[16] On 17 November 2021, Mr Casper attended the office of New Horizons to return company property. He also delivered to his Team Leader a box containing two white feathers and said “in the box is a present for you, mainly you. Barry and Larissa”. Mr Casper then walked away. 12
[17] By email sent on 19 November 2021, Mr Casper was invited to show cause as to why his employment should not be terminated. 13 Mr Casper did not take up the opportunity afforded to him to show cause as to why he should not be dismissed.
[18] By letter dated 29 November 2021, New Horizons informed Mr Casper that his employment was terminated. 14 He was paid two weeks’ pay in lieu of notice.
[19] The only evidence given by Mr Casper in these proceedings was to confirm the truth and accuracy of a short statement he had made, by email, in the following terms: 15
“My argument will be that having an experimental medical procedure is unlawful and being forced to do this to remain in employment is coercion.
Also to undergo a medical proceeding to remain in employment was not in my contract.”
[20] 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.
[21] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Casper’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Mr Casper was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Casper’s dismissal; and
(d) Mr Casper’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[22] 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 Mr Casper’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
General principles
[23] 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. 16 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”17 and should not be “capricious, fanciful, spiteful or prejudiced.”18
[24] 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. 19 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).20
[25] 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.21 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 22
[26] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 23
Valid reasons alleged by New Horizons
[27] New Horizons contends that it had three valid reasons to terminate Mr Casper’s employment. First, it is alleged that Mr Casper failed to follow a lawful and reasonable direction to be vaccinated against COVID-19 unless he had a medical contraindication (Vaccination Reason). Secondly, New Horizons submits that Mr Casper failed to follow a lawful and reasonable direction to refrain from using its information technology systems for personal use, and to only send correspondence to specifically identified employees (IT Reason). Thirdly, it is contended that Mr Casper engaged in misconduct when he bullied or harassed his colleagues by delivering them white feathers (White Feathers Reason).
Vaccination Reason
General principles
[28] In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. 24
[29] A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work. 25
[30] A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk. 26 Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.27
[31] The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations. 28 It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.29
[32] A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered. 30
Mr Casper’s submissions
[33] Mr Casper did not file or serve any written submissions. His representative made oral submissions at the hearing, which I have taken into account.
[34] Mr Casper relies on s 51(xxiiiA) of the Commonwealth of Australia Constitution Act (Constitution), which provides that “the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … the provision of … medical and dental services (but not so as to authorize any form of civil conscription) …” Mr Smith submits that the provision of medical services requires the free will of the person receiving the service, and the person’s free will is removed if the person is coerced or threatened in any way. Mr Casper contends that his free will was removed when he was required to be vaccinated.
[35] Mr Casper also relies on s 109 of the Constitution, which provides that “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.
[36] Mr Casper contends that COVID-19 vaccinations are both schedule 4 poisons and experimental drugs.
[37] Mr Casper submits that he made numerous attempts to obtain information from New Horizons about the lawfulness of its requirement that he be vaccinated against COVID-19, in addition to the medical and scientific basis for the decision by New Horizons to require Mr Casper to be vaccinated.
[38] Mr Casper contends that neither New Horizons nor any of its employees are authorised officers of the New South Wales government, with the result that they did not have any authority to require him to be vaccinated.
[39] It is contended by Mr Casper that COVID-19 vaccines are not, in truth, vaccines because they do not prevent the transmission of COVID-19.
[40] Mr Casper submits that the risks associated with taking a COVID-19 vaccine are high, and such risks outweigh the purported benefits of the vaccine.
Consideration
[41] Mr Casper’s contract of employment required him to comply with New Horizon’s “policies and procedures” and gave New Horizons the right to summarily dismiss him if he engaged in serious breach of such “policies and procedures”. 31 Mr Casper’s contract did not include an express term requiring him to comply with lawful and reasonable directions issued by New Horizons. I am satisfied that an implied term to that effect formed part of Mr Casper’s contract of employment with New Horizons.32
[42] Mr Casper’s contract of employment also informed him that the terms and conditions of his employment with New Horizons were contained in “the New Horizons Enterprise Agreement 2018 (the Agreement) or any other agreement which replaces the Agreement (its successor)”. 33 There is no dispute that the New Horizons Enterprise Agreement 2018 (Enterprise Agreement) applied to Mr Casper during his employment with New Horizons.34 Clause 8 of the Enterprise Agreement contains consultation obligations.
[43] The obvious purpose and object of the direction for Mr Casper and other New Horizons employees working within the SST program to be vaccinated against COVID-19 was to protect the health and safety of those employees and the vulnerable people with whom they come into contact in providing services. In this regard, the following comments made in the risk assessment undertaken by New Horizons at the request of the DCJ provide important context:
“Supporting and Securing Tenancies (SST) involves supporting some of the people most vulnerable to the consequences and likelihoods of Covid-19, including people who have been rough sleeping and transient.
In many instances, it will not be possible to confirm the health status of the person receiving service, particularly in respect to COVID-19. This includes status in relation to infection; vaccination and close contact or previous known whereabouts.
It has been reported that some of the people we serve will be unable or unwilling to register their attendance at our sites either by using QR codes or more traditional sign-in/attendance records.”
[44] In light of this context and the nature of the work Mr Casper was employed to do by New Horizons, I am satisfied that the direction to be vaccinated against COVID-19 fell within the scope of Mr Casper’s employment with New Horizons. 35
[45] There is nothing illegal or unlawful about becoming vaccinated. 36
[46] The direction for Mr Casper to be vaccinated against COVID-19 enlivened the consultation obligations in the Work Health and Safety Act 2011 (NSW) (WHS Act), including ss 47 to 49, 37 and the Enterprise Agreement. On the basis of the relevant facts to which I have referred above, I am satisfied that New Horizons:
(a) shared relevant information with Mr Casper and its other relevant employees about whether a direction should be made requiring those employees to be vaccinated against COVID-19. In this regard, it is significant that New Horizons explained the basis on which it was considering making the direction to Mr Casper before the risk assessment was completed. 38 In addition, a “live” version of the risk assessment was provided to employees for their feedback before it was finalised;39
(b) gave Mr Casper and its other relevant employees a reasonable opportunity to express their views and contribute to the decision making process;
(c) took into account the views of workers; 40 and
(d) advised Mr Casper and its other relevant employees of the outcome of the consultation in a timely manner.
[47] Having regard to all the circumstances, I am satisfied that New Horizons complied with its consultation obligations under the WHS Act and the Enterprise Agreement in connection with the making and communication of its decision for employees working in the SST program, including Mr Casper, to be vaccinated against COVID-19 unless they had a medical contraindication.
[48] There is no doubt that Mr Casper has a right to choose what occurs with respect to his own person. However, Mr Casper’s right to personal and bodily autonomy and integrity was not violated by the direction for him to be vaccinated against COVID-19 in order to continue working in the SST program. 41 That direction did not purport to confer authority on anyone to perform a medical procedure on anyone else. As Beech-Jones CJ at Common Law said in Kassam v Hazzard:42
“It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. [...] People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.”
[49] I do, however, take into account in my assessment of the reasonableness of the direction issued to Mr Casper that the effect of the direction was to apply pressure to Mr Casper to surrender his bodily integrity (by undergoing medical treatment) in circumstances where he did not wish to do so. 43
[50] The direction for employees working in the SST program to be vaccinated against COVID-19 has a logical and understandable basis. In particular, employees working in that program have face to face contact with vulnerable people, who may or may not be vaccinated or have COVID-19 at the time, and who may be susceptible to contracting COVID-19 or becoming seriously ill or dying from it. The evidence on which New Horizons relied from the decision of the Supreme Court of New South Wales in Kassam v Hazzard, and which is consistent with the expert medical evidence accepted by the Full Bench in Mt Arthur, 44 establishes that “COVID-19 vaccines reduce the risk of infection and transmission of the disease, attenuate the symptoms and possible consequences, and generally have only mild to moderate short-term side effects”. While it is true, as Mr Casper submits, that vaccines against COVID-19 do not stop people from contracting the disease, becoming ill or dying from it, or transmitting it to other people, the vaccines do reduce the risks of contraction, transmission and serious consequences. It is the reduction of such risks on which the direction issued by New Horizons was focused.
[51] I am satisfied that the requirement for employees working in the SST program to be vaccinated against COVID-19 was a reasonably proportionate response to the risk created by COVID-19. Taking a COVID-19 vaccine involves some risk. New Horizons relied on the finding by Justice Beech-Jones in Kassam v Hazzard that vaccines “generally have only mild to moderate short-term side effects” [emphasis added]. 45 No scientific or medical evidence was adduced in these proceedings to challenge or contest that finding. The risks of taking a vaccine must be weighed against the benefits of doing so. The benefits are obvious in circumstances where employees in the SST program deal with vulnerable persons and the vaccines reduce the risk of contraction, transmission and serious illness or death from COVID-19. I am also satisfied that the requirement was imposed having regard to the circumstances of those employees working in the SST program and the vulnerable people with whom they come into contact.
[52] Further, the direction was put in place by New Horizons after being required by its client, the DCJ, to undertake a risk assessment in the management of COVID-19, including as to whether vaccination was a reasonably practicable step to manage COVID-19. New Horizons sought input from relevant employees, including Mr Casper, into that risk assessment, which identified and weighed up a range of risks and control measures. I am satisfied that the direction to be vaccinated against COVID-19 has an evident and intelligible justification. In addition, the timing for the commencement of the direction was determined by reference to the circumstances imposed by the DCJ and COVID-19 cases in the community in late 2021.
[53] Mr Casper’s arguments in reliance on s 51(xxiiiA) of the Constitution fail on a number of fronts. First, this case does not concern any law which the Commonwealth parliament has made. Secondly, as I have already sought to explain, Mr Casper had a choice as to whether or not to be vaccinated against COVID-19. His free will was not removed or violated. Mr Casper elected not to be vaccinated. A consequence of that choice is that he did not comply with the direction given to him by New Horizons that employees working in the SST program be vaccinated against COVID-19, unless they have a medical contraindication. Non-compliance with that direction resulted in the termination of Mr Casper’s employment. I acknowledge that the choice for Mr Casper was a difficult one. However, it remained his decision to make.
[54] There is no substance to Mr Casper’s argument in reliance on s 109 of the Constitution. This case does not involve a law of the Commonwealth or a law of a State. Hence there is no inconsistency between any such laws. This case involves the giving of a direction to an employee pursuant to an implied term in a contract of employment.
[55] As to Mr Casper’s contention that COVID-19 vaccinations are both schedule 4 poisons and experimental drugs, the vaccines which New Horizons directed its employees to take if they wished to continue working in the SST program are vaccines approved by the Australian Technical Advisory Group on Immunisation (ATAGI).
[56] I am satisfied on the evidence given by Mr Miles that New Horizons responded reasonably to Mr Casper’s requests for information about its direction and the basis for it. Those responses provided appropriate information and links or suggestions of additional places where Mr Casper could obtain further information. The reality is that Mr Casper did not agree with the direction to be vaccinated or the information given to him by New Horizons to support its decision in that regard.
[57] There is no merit in Mr Casper’s suggestion that neither New Horizons nor any of its employees are authorised officers of the New South Wales government, with the result that they did not have any authority to require him to be vaccinated. Notwithstanding some erroneous references in Mr Miles’s correspondence to Mr Casper in relation to public health orders, there were no public health orders that applied to Mr Casper in connection with his employment with New Horizons. Reliance was placed by New Horizons on its contractual power to issue lawful and reasonable directions to its employees. An employer does not require authority from any government to exercise such contractual powers.
[58] Having regard to all the circumstances, I am satisfied that the direction requiring Mr Casper to be vaccinated against COVID-19, unless he had a medical contraindication, was lawful and reasonable.
[59] There is no dispute that Mr Casper was not, during his employment with New Horizons, vaccinated against COVID-19 and he did not have a medical contraindication. 46 It follows that Mr Casper did not comply with New Horizons’ lawful and reasonable direction that he be vaccinated against COVID-19, unless he had a medical contraindication, if he wanted to continue working in the SST program. I am satisfied that Mr Casper’s failure to comply with this lawful and reasonable direction gave New Horizons a sound, defensible and well founded reason to terminate his employment.
Consideration re the IT Reason
[60] At 10:23am on 16 November 2021, Mr Casper sent an email to a large number of New Horizons employees. In that email Mr Casper set out his views in relation to the requirement being imposed by New Horizons for employees to be vaccinated against COVID-19. Mr Casper expressed the opinion that he should have a choice about whether or not to take the COVID-19 vaccine.
[61] At 12:03pm on 16 November 2021, Mr Miles responded to Mr Casper’s email and instructed Mr Casper to send any further correspondence to himself (cc Ms Cassandra Preston). Mr Miles also informed Mr Casper that “correspondence with the CEO and/or Chief Customer Service Officer or other New Horizons employees is not authorised. Failure to follow these instructions will result in further disciplinary action possibly including termination of your employment.” 47
[62] At 5:27pm on 16 November 2021, Mr Casper emailed a letter to Mr Richard Gregg, the Chief Executive Officer of New Horizons. 48 The content of the letter is set out in paragraph [15] above.
[63] I do not accept New Horizons’ contention that Mr Casper failed to follow a lawful and reasonable direction to refrain from using its information technology systems for personal use, and to only send correspondence to specifically identified employees. I do not consider that the direction for Mr Casper to only correspond with Mr Miles (cc one other employee) was reasonable in the circumstances. Mr Casper had repeatedly corresponded with Mr Miles, asking questions, seeking information, and expressing his views. Mr Casper was clearly not satisfied with the responses he had received from Mr Miles. Mr Casper had received email correspondence from Mr Gregg in relation to the vaccination issue 49 and had not repeatedly sent email correspondence to Mr Gregg. Having regard to that context, I do not consider that it was unreasonable of Mr Casper to send his letter to Mr Gregg on 16 November 2021. Mr Casper was, in effect, seeking to go over Mr Miles’s head and obtain information and “proof” from the most senior employee in the organisation. The reasonableness of Mr Casper’s actions may have been questioned had he previously bombarded Mr Gregg with emails or repeatedly sought the same information from him. In addition, I do not consider that Mr Casper used the New Horizons email system for his “personal use” when he emailed his letter to Mr Gregg on 16 November 2021. In that letter Mr Casper was raising matters and issues concerning the direction given to him by New Horizons to be vaccinated against COVID-19. In doing so, he was addressing a work related matter and was not using the email system for his “personal use”.
[64] Accordingly, I find that the IT Reason was not a sound, defensible or well founded reason for the termination of Mr Casper’s employment.
Consideration re the White Feathers Reason
[65] There is no dispute that Mr Casper delivered a box containing white feathers to New Horizons’ employees on 17 November 2021.
[66] Mr Casper submits that he delivered the white feathers to New Horizon as a “peace offering”. I do not accept his contention in that regard, for three reasons. First, annexed to Mr Miles’s witness statement is a contemporaneous email from Ms Borrett to Mr Miles in which an account is given of what happened on 17 November 2021. Mr Casper did not give any evidence contesting any part of this account, which I accept, notwithstanding its hearsay nature. The account is in the following terms:
“GC [Mr Casper] has entered reception of NH office. Reception was busy with clients and other staff present. TL has invited GC into the intake and assessment office – ‘Please come in here away from Tony and the others’ (client)
GC has state No=
GC has then stated ‘Here’s all my gear and in the box is a present for you, mainly you, Barry and Larissa’
GC has then walked away
TL has replied ‘Are you serious?’
GC has then turned back to TL and said ‘Thanks for nothing’ and something else TL couldn’t hear.
GC left the office.
Please see attached pic [of box containing feathers]
Greg has not returned his office key at this stage either.
Needless to say the little team I have left are now extremely unsettled after the last couple of days and all events that have happened.”
[67] This unchallenged account of what took place on 17 November 2021 suggests that Mr Casper did not provide the white feathers as a “peace offering”.
[68] Secondly, I have earlier accepted unchallenged evidence set out in the record of conversation annexed to Mr Miles’s witness statement as to what Mr Casper said to his colleague, Ms Werner, on 8 November 2021, namely that Mr Casper was “going to take all management down … going to get 5 white feathers and place these on managements desk … as they represent cowardness … everyone that gets the booster shot will be dead … management … were all going to pay in some form”. 50 This conversation supports New Horizons’ contention that the white feathers were delivered by Mr Casper as an attempt to intimidate, bully or harass New Horizons staff, not as a “peace offering”.
[69] Thirdly, it is clear from the email correspondence between Mr Casper and New Horizons managerial staff, including Mr Miles, a copy of which is annexed to Mr Miles’s witness statement, that Mr Casper disagreed strongly with the decision made by New Horizons to introduce its vaccine requirement and maintained his position in that regard through to the termination of his employment. 51 Having regard to those contextual circumstances, I consider it most unlikely that Mr Casper was seeking to make a “peace offering” when he delivered white feathers to New Horizons employees on 17 November 2021.
[70] I am satisfied on the balance of probabilities that Mr Casper was seeking to intimidate, bully or harass New Horizons staff by delivering them a box containing white feathers, which he had earlier described as representing “cowardness”. 52 His conduct in that regard was unreasonable and, not surprisingly, contributed to New Horizons employees feeling “extremely unsettled”.53 I find that Mr Casper’s conduct in delivering staff a box containing white feathers provided New Horizons with a sound, defensible and well founded reason to terminate his employment.
Conclusion re valid reason
[71] For the reasons given, I am satisfied that the Vaccination Reason and the White Feathers Reason were valid reasons for New Horizons to terminate Mr Casper’s employment.
[72] Mr Casper was notified of the reasons for his dismissal in the show cause email sent to him on 19 November 2021 and the termination letter sent to him by email on 29 November 2021.
[73] Mr Casper was given an opportunity to respond to the reasons for his dismissal in the show cause email sent to him on 19 November 2021. Mr Casper did not take up that opportunity.
[74] Having regard to all the circumstances, I am satisfied that Mr Casper was given an opportunity to respond to the reasons for his dismissal related to his conduct and capacity.
Unreasonable refusal to allow a support person (s 387(d))
[75] New Horizons did not have any in-person discussions with Mr Casper relating to his dismissal. All relevant communications at that time were in writing.
[76] In all the circumstances, I am satisfied that there was not any unreasonable refusal by New Horizons to allow Mr Casper to have a support person present to assist in any discussions relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
[77] Mr Casper 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))
[78] New Horizons is a large organisation. It has human resources specialists and expertise in its human resources team. In all the circumstances, I am satisfied that neither the size of New Horizons enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Mr Casper’s dismissal.
Other relevant matters
[79] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[80] I take into account the fact that, save for a period of about 12 months when Mr Casper took time off to travel around Australia, he was employed by New Horizons from 2016 until late 2021 and there is no suggestion in the evidence that he performed poorly or engaged in any misconduct other than in connection with the three reasons relied on by New Horizons to terminate his employment on 29 November 2021. The length and quality of Mr Casper’s employment record weighs in his favour.
[81] Apart from the matters I have already addressed, there are no other relevant matters for consideration.
Conclusion
[82] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that New Horizons’ dismissal of Mr Casper was not harsh, unjust or unreasonable. New Horizons issued Mr Casper with a lawful and reasonable direction to be vaccinated against COVID-19, unless he had a medical contraindication, if he wished to continue to work in the SST program. Mr Casper did not comply with that direction. In addition, Mr Casper engaged in inappropriate conduct by delivering a box containing white feathers to New Horizons employees, as an attempt to intimidate, bully or harass those employees. Those matters gave New Horizons a valid reason to dismiss Mr Casper. I consider that New Horizons afforded procedural fairness to Mr Casper prior to making a decision to bring his employment to an end.
[83] I am satisfied that New Horizons’ dismissal of Mr Casper was not unfair within the meaning of the Act. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Smith and Mr G Casper, for the Applicant
Mr J Handley, solicitor, for the Respondent
Hearing details:
2022.
Newcastle (by videoconference):
12 April.
Printed by authority of the Commonwealth Government Printer
<PR741909>
1 Hearing Book at p 36 [4]
2 Hearing Book at pp 79-85
3 Hearing Book at p 102
4 Hearing Book at p 87
5 Hearing Book at p 88
6 [2021] NSWSC 1320
7 Hearing Book at p 103
8 Hearing Book at p 102
9 Hearing Book at pp 110-111
10 Hearing Book at p 122
11 Hearing Book at pp 125-127
12 Hearing Book at p 128
13 Hearing Book at p 130
14 Hearing Book at pp 135-6
15 Hearing Book at p 25
16 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]
17 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]
18 Ibid
19 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]
20 Ibid
21 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
22 Ibid
23 Ibid
24 CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 (Mt Arthur) at [64]
25 Ibid at [68]
26 Ibid at [69]
27 Ibid at [70]
28 Ibid at [72] & [95]-[96]
29 Ibid at [77]
30 Ibid at [79]
31 Hearing Book at pp 53 & 57
32 Mt Arthur at [64]
33 Hearing Book at p 51
34 Hearing Book at p 18
35 Ibid at [85]
36 Ibid at [85]
37 Ibid at [98]
38 Hearing Book at p 80
39 Hearing Book at pp 88-101
40 Hearing Book at pp 38-9
41 Mt Arthur at [218]
42 Ibid
43 Mt Arthur at [223]
44 at [29]
45 Hearing Book at p 90
46 See, for example, Hearing Book at pp 102, 111 & 121
47 Hearing Book at p 124
48 Hearing Book at pp 125-127
49 Hearing Book at pp 105-107
50 Hearing Book at p 87
51 Hearing Book at pp 81-127
52 Hearing Book at p 87
53 Hearing Book at p 128