| [2022] FWC 1594 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Tween
v
Qantas Airways Ltd
(U2022/1335)
DEPUTY PRESIDENT EASTON |
SYDNEY, 22 JUNE 2022 |
Application for an unfair dismissal remedy – mandatory vaccination policy – refusal to be vaccinated against COVID-19 – lawful and reasonable direction – consultation – large organisation – Work Health and Safety Act 2011 (NSW) – Policy not invalid because of deficiencies in consultation – consultation deficiencies curable and cured prior to direction given under Policy – lawful and reasonable direction given – genuinely held fear of vaccine – no medical reason not to be vaccinated – valid reason for dismissal related to capacity or conduct – alternatives to dismissal – reasonable not to allow access to paid leave – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Mr Tween is 51 years old, married and has four children. Mr Tween was employed by Qantas for 31 years and was dismissed because he refused to be vaccinated against COVID-19. There was no evidence of, or even suggestion of, any medical reason why Mr Tween could not be vaccinated. However Mr Tween was not vaccinated because he “feared for his life”. Mr Tween’s fear cost him the only full-time job he has ever had.
[2] Mr Tween is one of many Qantas Airways Ltd (Qantas) employees who were dismissed after Qantas introduced the “COVID-19 Vaccination Policy” on 20 September 2021 (“the Vaccination Policy”). The Vaccination Policy applies to Australia–based employees of the Qantas group and requires all staff to be vaccinated against COVID-19, subject to very limited exemptions.
[3] When the Vaccination Policy commenced Mr Tween was stood down and was not allowed to do any further work. He was then subject to a disciplinary process, including receiving a show cause letter and attending a show cause meeting, and then was dismissed.
[4] Mr Tween claims that his dismissal was unfair and made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy. Mr Tween’s primary claim is that the requirement to be vaccinated is not a lawful and reasonable direction because Qantas failed to properly consult with its workforce and stakeholders before introducing the policy containing the direction. Mr Tween also claims that his dismissal was unfair because of the significant consequences for him, and because alternatives to dismissal were available: that Qantas could have and should have allowed Mr Tween to access up to nine months of paid leave to give him time to wait for the approval of the Novavax vaccine.
[5] Mr Tween’s dismissal was a tragedy. Despite the urge to rescue Mr Tween from the significant consequences of his own personal decision, I cannot do so because his dismissal was not harsh, unjust or unreasonable.
[6] Public Health Orders (“PHOs”) have applied at various times during the covid pandemic across Qantas’ business operations. Mr Tween was employed in Sydney and the only relevant PHO for him prevents him from working at the Sydney International Terminal. During some periods in 2021 Mr Tween was able to work, unvaccinated, in some locations at Sydney airport other than the international terminal - most notably work in and around the aircraft hangars.
[7] On 20 September 2021 Qantas introduced COVID-19 Vaccination Policy to deal with vaccination across the whole Australian operation. The Policy includes the following terms:
“3. Employee COVID-19 Vaccination Requirements
3.1 All Employees are required to be fully vaccinated with an Approved COVID-19 Vaccine and provide the Company with Evidence of Vaccination within the timeframes set out in 3.4 below. The timeframes in 3.4 have been set in accordance with current general community accessibility and individual eligibility, as well as priority access for some aviation workers, and may be amended at the Company’s discretion from time to time.
3.2 The Evidence of Vaccination must be provided by following the process set out in 6.1 below, unless the Company approves another process for the individual Employee … The Company may request that an Employee provide further evidence if it is not satisfied with the Evidence of Vaccination they have provided.
3.3 The table in 3.4 below sets out the date by which Employees must be fully vaccinated with an Approved COVID-19 Vaccine and provide the Company with Evidence of Vaccination (Compliance Date). In limited circumstances where an Employee lives (or works) in a jurisdiction or location where an Approved COVID-19 Vaccine has not been available to them such that they cannot meet the relevant Compliance Date, they may be provided with reasonable additional time to be vaccinated against COVID-19. In these circumstances, the Compliance Date will be varied on the basis of the timing of Approved COVID-19 Vaccine availability in their jurisdiction or location. Employees will need to submit an application for a temporary exemption (including providing reasons for their request and relevant supporting documentation) via the exemption process in place at the relevant time, which will be notified to Employees.
…
3.5 Employees who are stood down will be required to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination by the Compliance Date or their first duty, work day or shift, whichever is later.
…
3.9 Where an Employee wishes to seek a temporary or ongoing exemption (as applicable) from the requirement to be fully vaccinated with an Approved COVID-19 Vaccine by the Compliance Date or at all, they should do so no later than six (6) weeks prior to the Compliance Date applicable to the Employee. Please refer to Section 4 of this Policy for further information.
3.13 Noncompliance with requirements
(a) Employees must comply with the requirements under this Policy to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination.
(b) Employees who are unable to comply with the requirements of the Policy because of Medical Contraindications (or are seeking exemptions on other medical or non-medical grounds) should refer to section 4.
(c) Employees who do not comply with the requirements of the Policy (except those Employees granted an exemption under section 4) will be considered to have not complied with a lawful and reasonable direction. They may be subject to disciplinary action, which, in the circumstances, is likely to be termination of their employment.
…
5.2 Employees are responsible for:
(a) being fully vaccinated with an Approved COVID-19 Vaccine and providing Evidence of Vaccination on or before the Compliance Date;
(b) submitting an application for an exemption from the requirement under the Policy to be fully vaccinated with an Approved COVID-19 Vaccine within the timeframes and in the manner specified in section 4 of the Policy; and
(c) notifying their Manager or their HR representative if they are otherwise unwilling or unable to comply with the Policy by the Compliance Date or at all.”
[8] The Policy was accompanied by a “Detailed Employee Q&A” that included the following:
“Q: I am prepared to get vaccinated but would prefer to wait until I can get access to a Pfizer or Moderna vaccine. What should I do?
All Approved COVID-19 Vaccines currently available in Australia have been approved by the TGA and determined to be effective and safe for use as recommended by Government, and on the advice of a health practitioner.
The Government has advised that additional Pfizer and Moderna will be available soon and the Compliance Dates in the Policy have been based on current Government advice regarding the vaccination rollout, increased availability and the priority access given to aviation workers in most states and territories.
Q. My Compliance Date under the Policy is 15 November 2021. I would prefer to be vaccinated with the Novavax vaccine. Will I be able to wait until becomes available?
You will need to meet the Compliance Date of 15 November 2021, unless an exemption is granted. To date, the TGA has provisionally approved the Pfizer, AstraZeneca and Moderna vaccines. Pfizer Zeneca are currently available, and Moderna will start to become available from late 2021.
As at 20 September 2021, the Novavax vaccine has not been approved by the TGA nor endorsed by the WHO and is not available in Australia (or any other country). If Novavax is approved by the TGA, it is currently expected that the majority of doses won’t start to become available until around January 2022 and it is not known who will have priority access to it.”
…
Q: What will happen if I refuse to get vaccinated?
As with all workplace policies applying to Qantas Group employees, you will need to ensure you comply with the Policy.
The Company understands there may be a small number of people who may wish to seek an exemption, temporarily or on an ongoing basis, from the requirement to be fully vaccinated for medical or other reasons. Those cases will be assessed and managed on a case-by-case basis.
However, given the purpose and scope of the Policy, the Company expects that there will be very limited (if any) circumstances in which exemptions will be granted.
If you do not comply with the requirements under the Policy to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination, and have not been granted an exemption, you will be considered to have not complied with a lawful and reasonable direction. If this happens, you may be subject to disciplinary action which, in the circumstances, is likely to be termination of your employment with the Company.
Q: I don’t want to be vaccinated, is it an option to be redeployed to another role or do other tasks?
Generally, no. The Policy applies to all Australia-based employees and all roles.
…
Can I apply for an exemption from the requirement under the Policy to be fully vaccinated?
Yes. The Company will consider requests for exemptions on a case by case basis. For more information on exemptions under the Policy, please refer to the Exemptions Q&A available on the Terminal and JEN.
Please note, given the purpose and scope of the Policy, the Company anticipates that very limited exemption applications will be accepted.”
[9] The central plank of Mr Tween’s case is his claim that Qantas’ consultation did not satisfy the requirements of s.47 and s.48 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and as a result the direction contained within the Vaccination Policy was not a “reasonable” direction by Qantas to Mr Tween.
[10] On 28 July 2021 Qantas sent a vaccination survey to all 22,000 employees in its group. 12,000 employees responded and the headline results from the survey, according to Qantas, were:
“• 89 per cent of those who responded are already partially or fully vaccinated against covid-19 or are planning to be…
• around three-quarters think it should be a requirement for all employees to be vaccinated and would be concerned if other employees in the workplace weren’t vaccinated; and
• 4 per cent are unwilling or unable to get vaccinated.”
[11] On 18 August 2021 Mr Alan Joyce, Qantas’ CEO, issued a press release that included the following:
“The Qantas Group will require all employees to be fully vaccinated against COVID-19 as part of the national carrier’s commitment to safety.
Frontline employees – including cabin crew, pilots and airport workers – will need to be fully vaccinated by 15 November 2021 and the remainder of employees by 31 March 2022. There will be exemptions for those who are unable for documented medical reasons to be vaccinated, which is expected to be very rare.
The policy follows consultation with Qantas and Jetstar employees including a survey sent to 22,000 people to seek their views on vaccination…
…
It’s clear that vaccinations are the only way to end the cycle of lockdowns and border closures and for a lot of Qantas and Jetstar employees that means getting back to work again. This was one of the largest responses to any survey we’ve conducted, even with thousands of our people stood down, which shows just how important this is for them.
…
Further discussions will take place with employees, their health and safety representatives and unions over the coming weeks on the detail of the policy, including how medical exemptions will be applied…”
[12] On the same day all staff were sent an email from the CEO that included the following:
“Firstly, thank you to everyone who took the time to fill out our recent COVID-19 vaccination survey. We had 12,000 responses from across Qantas, Jetstar, QantasLink, Freight, and Loyalty, with broad participation from both operational and corporate areas…
This feedback has strengthened our view that making COVID-19 vaccinations a requirement for all Qantas Group employees is the right decision.
… The survey showed that a small number of people don’t want to or may be unable to be vaccinated. We’ll manage requests for exemptions on a case-by-case basis, just as we do with existing policies.
And while we understand that some people won’t agree with the new policy on principle, we have a responsibility to provide the safest environment for our people and customers that we reasonably can.
NEXT STEPS
We have developed a proposed COVID-19 vaccination policy that covers all the detail and we’ll be meeting with your health and safety representatives and unions to discuss the roll out.
Our plan is to roll out the vaccination requirement in two phases…”
[13] The press release and the all-staff email were obviously expressed in definitive terms and did not leave any room for consultation or negotiation about whether the mandate would be introduced. By the words used, consultation was to take place after the announcement, but only about the implementation / “roll out” of the requirement and about how exemptions might apply.
[14] I also observe that the press release was obviously intended to engender public confidence in Qantas as an airline. In this regard the terms used by the CEO were intentionally decisive.
[15] Despite the language of the earlier communication, extensive consultation did in fact take place between the announcement on 18 August 2021 and the commencement of the Vaccination Policy on 20 September 2021. A draft policy was released on 18 August 2021. After the release of the draft policy the following consultation took place:
a) at least 50 extraordinary consultation meetings specific to the proposed policy attended by management, employees and their health and safety representatives;
b) the promulgation of a risk assessment that had been prepared in relation to the Proposed Policy;
c) regular workplace health and safety committee meetings, which were a forum for feedback in relation to the Proposed Policy;
d) information sessions held by the Qantas Medical, Safety and People teams, at which employees could ask questions and provide feedback;
e) publication of a General COVID-19 Vaccinations Q&A document that was updated to address questions raised during the consultation process by employees, HSRs and unions;
f) the delivery of online "webinars" devoted to the proposed policy and where employees could ask questions and give feedback;
g) "Townhall" meetings hosted by members of Qantas Group's Group Management Committee, at which some of the Qantas Group's most senior executive managers spoke to the Proposed Policy, fielded employee questions and received feedback;
h) a separate mailbox was set up and monitored by a dedicated team of Qantas Group staff. Employees could send queries to this inbox and provide feedback on the Proposed Policy, which were responded to by the team; and
i) the entities within the Qantas Group in August and September 2021 arranged and attended meetings to discuss the issues with each registered union with coverage over its employees. Two meetings were held with the Australian Licensed Aircraft Engineers’ Association (of which the Applicant was a member).
[16] Mr Rodney Wyse gave evidence on behalf of Mr Tween. Mr Wyse is currently the Deputy Chair of the Sydney Line Maintenance (SLM) Health and Safety Committee (“SLM WHS Committee”) and has served on that committee for approximately 12 years. Mr Wyse is also the Federal President of the Australian Licensed Aircraft Engineers Association (“ALAEA)”). Mr Wyse gave evidence that there was no consultation with the WHS Committee prior to the announcement made on 18 August 2021.
[17] Mr Wyse attended a SLM WHS Committee meeting on 31 August 2021. Dr Russell Brown from Qantas gave a presentation in relation to COVID-19 vaccination and fielded questions from committee members. At this meeting there were requests for further information and Mr Wyse says that Qantas did not provide the further information requested. Shortly before the finalisation of the policy the Chairperson of the SLM WHS Committee sought a two-week extension to respond to the draft policy. The request for an extension was denied.
[18] Mr Matthew Franzi, Executive Manager Group Safety & Security, provided the following explanation for denying the extension:
“… With respect to Sydney Line Maintenance in particular, this was a policy - proposed policy that was across the organisation considerate of the risk of COVID-19 and to the extent that Sydney Line Maintenance was deferred or postponed as suggested would have introduced other risk that is perceived or believed to be unnecessary and unreasonable, for example, the continuation of people working in an operational landscape in proximity to others that may or could have had contracted COVID-19 and a further delay could have introduced unnecessary risks to those individuals.”
[19] The terms of the Vaccination Policy were finalised and published without the endorsement of the SLM WHS Committee because Qantas did not provide the information requested.
[20] Dr Peter Prasad is the Head of Occupational Health, Qantas Medical and his responsibilities include the strategy, development and maintenance of standards, policies and procedures and the development and leadership of programs relevant to occupational health. Over the course of the COVID-19 pandemic Dr Prasad has held the additional responsibility of clinical lead for the Qantas group COVID-19 support team, which means that he has had responsibility over occupational contract tracing and the formulation and implementation of standards, policies, procedures and programs relevant to preventing COVID-19 in the workplace and addressing the potential harms of COVID-19 to Qantas’ people.
[21] Dr Prasad’s evidence drew from his medical expertise and experience in dealing with the clinical, occupational health, and work health and safety aspects of the pandemic as it pertained to Qantas’ staff and workplaces. Dr Prasad also relied on published medical evidence, government publications, and direct liaison with medical experts and government health authorities.
[22] Dr Prasad described the dramatic and now uncontroversial effects of COVID-19 which “has caused more than 497 million cases of infection and 6.17 million deaths worldwide (to 9 April 2022)”.
[23] In relation to the approved vaccines Dr Prasad gave the following, largely unchallenged, evidence:
“The TGA only grant provisional approval after a complete assessment of all available data is undertaken. The process applied by the TGA to COVID-19 vaccines is the same process taken by the TGA for any vaccine provisionally approved in Australia, and provisional approval is only granted if a vaccine is safe and effective. The TGA's evaluation process includes considering whether the need for early access to the vaccine, having regard to the seriousness of the COVID-19 pandemic, outweighs the risks of receiving the vaccine. The granting of provisional approval for the COVID-19 vaccines by the TGA indicates that the vaccine is safe and effective, and the risks of receiving the vaccine outweigh the risk posed by the consequences of contracting the virus. The TGA continue to monitor vaccine safety and efficacy after provisional approval is granted.
Accordingly, the advice from the Australian Government is that COVID-19 vaccines provisionally approved by the TGA are safe for use and effective in preventing transmission and the consequences of the virus. From the commencement of the vaccine roll out in Australia on 22 February 2021 up until 7 April 2022, over 57 million doses of COVID-19 vaccine have been administered. In that period, the TGA has found only 11 deaths were linked to immunisation and each of these deaths occurred after a person received the first dose of the AstraZeneca vaccine. In comparison to COVID-19, as at 9 April 2022, Australia-wide cases total approximately 5.02 million, and 6,550 deaths.
As with all medicines, people can experience adverse effects from receiving a COVID- 19 vaccine, however, serious adverse effects are very rare. For example, the risk of myocarditis after receiving a COVID-19 vaccination is approximately 2.3 per 100,000 vaccinated persons. Myocarditis is usually temporary and most people recover within a few days. To put this into perspective, the general population risk of myocarditis, without COVID-19 circulating the community, is approximately 9 cases per 100,000 of the population. Further, the risk of myocarditis from COVID-19 itself is approximately 156 cases per 100,000 COVID-19 cases.
As outlined above, an unvaccinated person is more at risk of being harmed by contracting the virus than receiving a COVID-19 vaccine when considering the number of COVID-19 cases in the community. Although a vaccinated person can still contract the virus, the protective benefits of receiving the COVID-19 vaccine far outweigh the potential risks of suffering serious health consequences and the likelihood of transmitting the virus to other persons. Whilst the option remains for unvaccinated individuals to await future vaccination, the risk of COVID-19 infection is high, and the rate of hospitalisation and death from COVID-19 remains relatively high.”
…
Although other control measures, such as mask wearing, physical distancing, time minimisation, and sanitising, reduce the likelihood that someone will become infected with the virus, they do not provide a substitute for the protection afforded by vaccines against the severe health consequences a person can suffer from contracting the virus. Vaccination is the only practicable control available that has an effect on reducing the consequences of infection, whereas other control measures only affect the likelihood of becoming infected.
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Since the beginning of the pandemic, aviation (including the Qantas Group’s operations) have been considered a particular vulnerability for the potential movement of COVID-19 (i.e. from regions of higher prevalence to regions where COVID-19 was minimal to non-existent). Governments responded accordingly. This required the Qantas Group to engage with Federal and State Governments and Health Authorities to ensure that the various Public Health Orders, procedures and guidelines were followed.”
[24] Dr Prasad also provided a very long list of other programs for risk management and worker and customer engagement deployed by Qantas because of the COVID-19 pandemic. It is significant to note that the mandatory vaccination policy implemented by Qantas was but one of many control measures applied by Qantas.
[25] In relation to the Vaccination Policy itself, Dr Prasad gave evidence that Qantas Medical personnel were involved in the formulation of the Vaccination Policy as “subject matter experts”. Qantas Medical researched the available medical evidence and formulated recommendations based on that evidence, as well as participated in employee engagement activities and provided answers to specific questions from workers during business-led forums.
[26] When asked in cross-examination whether working as a LAME in close contact with other workers carried a similar risk as travelling on a bus or train, Dr Prasad agreed that the risk present at Qantas’ workplace were substantially the same as the risks that arise anywhere in society. Dr Prasad accepted that there was no additional risk that arises from the act of travelling in a plane and that the risk for workers at the workplace is no higher than the risks for someone attending a shopping centre. Dr Prasad did qualify this answer by observing that “you're probably no more likely to contract COVID from somebody in your team that you're spending hours every day with than somebody in your family, in your household, for example.”
[27] Dr Prasad accepted the notion that at the time of the introduction of the policy Qantas had set a vaccination target rate (i.e. 100%) higher than the NSW government’s target for the wider community (70-80%).
[28] Dr Prasad also conceded that requiring passengers to be vaccinated would reduce the risk of COVID in the workplace. Qantas has not ever imposed a requirement that passengers be vaccinated. Dr Prasad conceded that the presence of unvaccinated passengers increased the risks for staff and other passengers and considered that the reason Qantas did not insist that passengers be vaccinated was because to do so would delay its return to operations.
[29] Mr Tween commenced employment with Qantas in 1991. He completed an apprenticeship in 1995 and continued in employment as an Avionics Aircraft Maintenance Engineer. In 2000 he gained his first license to certify for aircraft maintenance and since then has been employed by Qantas as a Licensed Aircraft Maintenance Engineer at Mascot.
[30] Mr Tween’s employment of 31 years was unblemished.
[31] Since around late 1993, Mr Tween had worked at the Sydney International Terminal and, following a restructure to SLM, had been a member of an “international crew". Mr Tween held a specialised licence that permitted him to certify maintenance on Atlas Air B747-8 freighter aircraft, which is an aircraft used for international freight operations. Qantas provides maintenance services to a separate aviation company, Atlas Air, for its fleet of B747-8s. Mr Tween was one of only 16 LAMEs at SLM endorsed by Qantas to obtain the licence to service the B747-8s for Atlas Air.
[32] From June 2021 Qantas could only send staff to the Sydney International Terminal if those employees were vaccinated because of a PHO in place at the time. As a result, Mr Tween was moved to a crew that never went to the Sydney International Terminal. From then on, Mr Tween says, he worked in the Sydney hangers where “staff who were not vaccinated met Public Health Order requirements.”
[33] Mr Tween says that upon receiving this email he was “overwhelmed with a feeling of deep concern … And it made me feel sick with worry.” Mr Tween says that around this time he was reading and watching a lot of material available on the Internet and other sources that seemed to conflict with Qantas’ claims that the vaccination was safe. He says he “did not know what to believe.”
[34] Mr Tween was hopeful that the consultation process undertaken with his union would result in “this unfair decision [to mandate vaccination]” being corrected. He said:
“These matters all caused me to take unusually high amounts of sick leave across the second half of 2021. On bad days I knew I was unfit to make critical decisions that involved aircraft safety. I went sick on these days.
After Qantas announced that the policy was in place, I believed something would change. In my mind, I felt like I was living a bad dream and I would eventually wake, and things would return to normal.”
[35] Mr Tween’s reaction on 20 September 2021 to Qantas’ announcement that the Vaccination Policy had commenced was:
“I could not sleep. I could not think straight. I genuinely feared for my life if I was forced to vaccinate.”
[36] I readily accept that Mr Tween’s stated views were honestly and genuinely held by him.
[37] Mr Tween’s fear that he would suffer adverse consequences from a COVID-19 vaccination are not supported by any evidence or assessment from a medical practitioner and seem to be based on published numbers of adverse events experienced by other people and based on things Mr Tween read on the internet.
[38] On 17 November 2021 Mr Tween was stood down from work and asked by way of a show-cause letter to explain why he had not provided proof of vaccination.
[39] When he received a show cause letter on 17 November 2021 Mr Tween understood that compliance with the Vaccination Policy was a serious matter and that his ongoing employment was at stake. Whilst he accepted this possibility he said that he did not understand at the time that a dismissal was going to happen. Mr Tween took the opportunity to make a written response to the show cause letter and took the opportunity to meet with representatives of Qantas.
[40] On 22 November 2021 he sent a letter to his manager, Mr Bird, explaining his position. Mr Tween’s explanation letter included the following:
“… I sincerely believe that the risk to me from the mRNA vaccines is too great … In spite of all this I do still want to be vaccinated because I know the threat that Covid 19 poses.
I want the liberty to be able to wait until the NOVAVAX vaccine becomes available…
I am happy to declare that I am committed to getting the NOVAVAX vaccine.
I totally understand Qantas’ position regarding the vaccination policy, due to the vast economic damage that Covid 19 has caused. I also sincerely apologise for not yet adhering to the policy. I was genuinely in a state of stress and anxiety in which I have never experienced before.
I therefore propose that if I am able to attend work I would only do so if I have evidence on my person of a negative Covid test within the previous three days (or less if you prefer) until such time as the NOVAVAX vaccine becomes available.
I have been a Qantas for almost 31 years. I love my job. It is the only job I have ever had. Until this year I have been the sole income earner for my family…
To lose my career now, especially over an issue of personal choice and health would be utterly devastating to me and to my family.
I hope that an agreement can be negotiated in regards to my employment with Qantas.”
[41] Mr Tween’s response included a proposal for Qantas to consider. The proposal was that he only attend work if he has an up-to-date negative Rapid Antigen Test.
[42] He accepted that his response was his considered position, fully stated as best he could. He said in hindsight he would have added extra details in his response but that what he did submit was the best that he could manage at the time. He accepted that his written response was his explanation as to why he had not complied with the Vaccination Policy and stated his concerns that caused him to decide not to be vaccinated.
[43] Importantly, whilst his response clearly stated that he was prepared to be vaccinated with the Novavax Vaccine, he did not ask to take paid or unpaid leave to wait until the Novavax Vaccine was approved for use in Australia.
[44] When Mr Tween met with management on 29 November 2021 he maintained the same position as stated in his letter, expressed the same concerns and repeated the same proposal. Mr Tween observed that he was incredibly stressed at the time of the meeting, barely remembers it because he was in a bad state mentally and doesn’t remember saying anything other than the proposal recorded in his written response.
[45] In cross-examination Mr Tween accepted that he understood that Qantas was giving him an opportunity to provide a written response as to why his employment should not be terminated, along with an opportunity to have a meeting to provide a further verbal response to the show cause letter, that he understood that his ongoing employment was at stake, and that during the disciplinary process he gave careful consideration to the matters he included in his written and verbal response.
The Outcome Meeting and the ALAEA
[46] On 11 January 2022 Mr Tween was contacted by Qantas to arrange a meeting on 13 January 2022 to discuss his employment.
[47] At this point, and for the first time, Mr Tween contacted the ALAEA for assistance.
[48] There was an email exchange between Mr Tween and officers of the union on 12 January 2022 in which Mr Tween was told that the union had “a little plan” for the meeting the next day which could improve his position in an unfair dismissal claim if his employment was in fact terminated.
[49] Part of the “little plan” was that Mr Tween ask to “take any form of leave until vaccinated with his preferred vaccine”. Mr Tween conceded in cross-examination that he had not previously asked to take paid leave to wait for the Novavax Vaccine, nor had he thought to ask for leave.
[50] Mr Gill gave evidence in support of Mr Tween’s application. Mr Gill has worked for Qantas since 1991, has been the Assistant Federal Secretary of the ALAEA since 2021, and has served in other honorary positions for ALAEA since 2010.
[51] Mr Gill attended the outcome meeting on 13 January 2022 with Mr Tween. Mr Gill read the following statement at the meeting:
“This has been a very trying time. Stuart has been asked to take one of two vaccines. He is scared and suffering anxiety as a result. Stuart has advised Qantas that he is willing to be vaccinated. His preference is Novavax. Novavax does not scare him and will reduce his anxiety. Stuart can test each day prior to work and only attend if negative to Covid. As an alternative, he is prepared to take any form of leave until vaccinated with his preferred vaccine. We consider this approach reasonable. It is consistent with practices at other companies and comments made by the Fair Work Commission. Stuart is a long-standing employee with an unblemished record. His dismissal would have a devastating effect on his family.”
[52] Mr Tween says that at the time of his dismissal he had access to approximately nine months of paid leave.
[53] Qantas’ immediate response to the statement read by Mr Gill was to indicate “we have already taken those things into account in our decision.”
[54] As it happens, Qantas had already considered the possibility of allowing Mr Tween and/or other employees to take paid leave and had decided to reject any such applications.
[55] At the meeting Mr Bird, Manager Engineering Operations Sydney, read a prepared letter addressed to Mr Tween. The letter advised Mr Tween that his employment was terminated and included the following:
“The Qantas Group strongly believes that vaccination against COVID-19 is critical for its people, customers, ongoing operations and for aviation more broadly. In addition to COVID- 19 vaccination regulatory requirements for airline workers, the Policy aims to provide the Group’s employees and customers with consistency of protection against COVID-19 in company premises and other environments required for work. It is a reasonable additional control for Qantas Group employees against exposure to COVID-19 and limiting transmission from our employees to others. Vaccination is our best possible protection against the adverse impacts of COVID-19, including the potentially serious health consequences, on operational continuity and our business, and disruptions to the essential service we provide…
As at the date of this letter, the Novavax vaccine has not been approved by the Therapeutic Goods Administration (TGA) and is not available in Australia It is not currently known if and when Novavax will be approved by the TGA and, if it is, when it will become available and who will have initial access to it.
In your Written Response you suggested that you could undertake regular COVID-19 testing as an alternative to vaccination while you wait for Novavax, stating “I totally understand QANTAS’ position regarding the vaccination policy … I therefore propose that if I am able to attend work I would only do so if I have evidence on my person of a negative COVID 19 test within the previous three days (Or less if you prefer) until such time as the NOVAVAX Vaccine becomes available”.
I have been informed that the Company does not consider that testing regimes alone are equivalent to vaccination as a control measure against the risks associated with COVID-19. While testing may detect the virus, it does not offer any protection from contracting the virus or any protection against the consequences of the virus which can include severe illness and hospitalisation. In contrast, vaccination protects against both these risks. Testing can at times not be 100% accurate or sensitive, so some cases can be missed, produce false negatives or fail to detect the virus in its early stages.
Further, reducing the risk of an unvaccinated worker contracting the virus would require frequent (at least daily) testing of not just the unvaccinated worker but also every person that worker comes into contact with in the workplace, in order to ensure (as far as possible, noting the inaccuracies associated with testing) that none of the unvaccinated worker's co-workers pass the virus on to the unvaccinated worker.
In these circumstances, the Company does not consider this a viable or satisfactory control measure against COVID-19.”
[56] The termination letter was then formally sent to Mr Tween on the same day.
[57] On 20 January 2022 Mr Tween lodged an internal appeal to Qantas. On 28 January 2022 Mr Tween’s appeal was dismissed.
[58] In CFMMEU v Mt Arthur Coal Pty Ltd 1 (“Mt Arthur Coal”) the Full Bench recognised that the introduction of a site access policy containing a COVID-19 vaccine mandate enlivened the consultation obligations in the WHS Act2. Qantas’ decision to introduce the Vaccination Policy, by the same reasoning, enlivened the consultation obligations in the WHS Act and the relevant consultation provisions of the enterprise agreement applicable to Mr Tween.
[59] In reliance on Mt Arthur Coal Mr Tween says that Qantas has failed to meet its consultation obligations under the WHS Act and the relevant enterprise agreement because:
(a) Qantas failed to consult relevant employees at all prior to deciding on 18 August 2021 to introduce the vaccine mandate; and
(b) the consultation that took place after the announcement of the policy (and before its terms were finalised and the Vaccination Policy commenced) was cursory at best, and deficient because Qantas did not answer all of the questions raised, and all of the requests made by SLM WHS Committee members; and
(c) consultation was deficient because Qantas failed to comply with the terms of the SLM WHS Committee Constitution.
[60] On 18 August 2021 Qantas announced its decision to introduce a country–wide policy mandating vaccination against COVID-19. The definitive wording of the all-staff communication and the public statements of the CEO left little room for doubt that a final decision had been made. Qantas led no direct evidence at all from the person or persons within Qantas who made the decision to mandate that staff must be vaccinated.
[61] Qantas argues that the survey conducted prior to the announcement on 18 August 2021 was consultation and was, in the words of Ms Burt, Head of Industrial Relations, Group Policy and Planning, “the best way of reaching all employees and obtaining their views, given also that a significant number were stood down at that time and not all employees were in work groups with a health and safety representative.”
[62] Qantas relies on the large communication plan that accompanied the survey that advised employees about the survey and encouraged participation in the survey. Staff were provided with a Q&A document, there were town hall meetings that discussed the survey, and the survey was raised in health and safety representative (HSR) consultation meetings. The Survey Q&A document indicated that the results of the survey would be collected and considered as part of the Qantas Group’s work health and safety consultation process and discussed with the different parts of the business as part of that consultation process. It stated that the survey results would be used “to better understand how risk is perceived amongst different work types and what hazards may need to be considered to inform its approach to vaccination requirements. Qantas says that the feedback was collated and provided to those developing the Vaccination Policy. Qantas held regular meetings amongst safety teams across the Group to share the feedback that had come through the survey, as well as feedback from other consultation measures and from management.
[63] Qantas says further that an urgent risk control measure across the Group necessarily involved Group-level management forming a policy approach on the threshold issue of whether to introduce vaccination requirements in the workplace, before developing the details of the scope and application of the policy.
[64] The reported survey results, particularly the fact that 89% of responders indicated they are vaccinated or are prepared to be vaccinated 3, are similar to general community levels of vaccination. Qantas’ evidence describes the “devastating impact on the Qantas business and its operations [including] experiencing a significant (at some stages, near total) reduction in flying from mid-March 2020”. If anything, the support for vaccination within the workforce of an airline trying to recover from this devasting impact, is slightly lower than expected.
[65] Although the survey was conducted early in the rollout of vaccines in Australia, if the 12,000 survey results were applied across the 22,000 employees surveyed, then 1540 employees (7%) were undecided or would not say, and 880 employees (4%) were unwilling or unable to be vaccinated– which suggests that possibly 2500 employees in the Qantas group might hold views that are not aligned with Qantas’ view.
[66] Mr Tween submits that consultation is not an opinion poll or a majority rules decision but it is meant to be an informed discussion. Minority groups still have to be listened to, not just identified and the survey process failed in this regard.
[67] I accept that if a small employer surveyed to its workforce and found overwhelming support for vaccination then consultation on the finer details of a mandate would be unnecessary and somewhat silly. I also accept that consultation with 22,000 employees in a short period of time could only be done with a blunt instrument.
[68] I am not prepared to find, however, that a survey where employees were asked to indicate over five groups of questions whether they were “not at all concerned”, “somewhat concerned”, “moderately concerned” and so on, was meaningful consultation of the kind described in Mt Arthur Coal Pty Ltd 4 where employees are given “an opportunity to be heard and their views taken into account when a decision is made”.
[69] By application of the reasoning of the Full Bench in Mt Arthur Coal, I find that the consultation undertaken by Qantas prior to the making of its decision on 18 August 2021 was not sufficient to meet its obligations under work health and safety legislation.
[70] However, the consultation that took place across Qantas’ business after the announcement on 18 August 2021 was appropriate and reasonable in the circumstances.
[71] Qantas’ list of consultation measures is substantially reproduced at paragraph [15] above.
[72] Mr Tween argues that the consultation between 18 August 2021 and 20 September 2021 was a cursory, steam roller process that did not meet Qantas’ obligations to consult. Although Mr Tween himself was not involved in any consultation via the SLM WHS Committee, he relies on the evidence of Mr Wyse and the fact that at a meeting on 31 August 2021 some questions raised by employee representatives remain unanswered.
[73] In relation to these unanswered questions, Qantas says extensive consultation had already taken place and that most of the questions raised were answered in the General COVID-19 Vaccinations Q&A information provided. Further, a member of Qantas Medical attended the SLM WHS Committee meeting and answered the questions that were put to him.
[74] Some of the queries raised via the SLM WHS Committee were peripheral and administrative, but some issues identified were significant. In my view the significant issues raised included the “list of exemptions that will and won’t be accepted by management”, and queries in relation to the information Qantas Medical would be able to access once employees provided their Individual Health Identifiers (IHI) number when providing proof of their vaccination status.
[75] However none of the matters raised were crucial to the finalisation of the terms of the policy itself. That is, at the time the Vaccination Policy was finalised and introduced there were some important matters identified in the consultation process that had not been resolved, but these matters should not have delayed the commencement of the Vaccination Policy because they were matters that could fairly be resolved after the Vaccination Policy commenced.
[76] Measured against the elements of proper and meaningful consultation identified by the Full Bench in Mt Arthur Coal, I find that the consultation undertaken by Qantas between the announcement on 18 August 2021 and the finalisation of the Vaccination Policy on 20 September 2021, was sufficient to meet its obligations under work health and safety legislation and the consultation obligations of the applicable enterprise agreement.
[77] Section 47(2) of the WHS Act is in the following terms:
“If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.”
[78] Mr Tween argues that Qantas was required to follow the procedures contained in the SLM WHS Committee Constitution, those procedures being agreed procedures for consultation for the purposes of s.47(2) of the WHS Act. Qantas was required, prior to conducting its survey, to “talk to its HSRs first to at least get their views on whether a survey is appropriate, how it should be run, the nature of the questions, that kind of thing.”
[79] Qantas argues that the scope of the SLM WHS Committee’s role is to deal with issues raised by employees within the workgroup and there is no indication that it has any role in the formulation of a Group-wide approach to implement vaccination requirements for employees as a risk mitigation measure to a pandemic.
[80] On the evidence, there were approximately 400 employees in the Sydney Line Maintenance area, which mathematically equates to approximately 1.8% of the employees in the Qantas group.
[81] The constitution of the SLM WHS Committee includes the following:
“The method for WHS consultation at Sydney Line Maintenance (SLM) shall be through the above-mentioned committee, which has the authority to report directly to management.”
…
The Scope of the Committee’s Role
The Committee will concern itself with safety-related matters that have been formally referred to the worker’s immediate Supervisor and which have not been acted upon by way of rectification or advice.”
[82] I agree with Qantas’ submission that neither the Constitution of the SLM WHS Committee, nor s.47(2) of the WHS Act, required Qantas to consult with the HSRs on the SLM WHS Committee before conducting a survey across the whole of the Qantas group about a significant risk applicable to the whole of the Qantas group.
[83] Having reached the above conclusions on consultation, I will now consider whether the direction within the Vaccination Policy was a lawful and reasonable direction.
[84] Mr Tween submits that because the Full Bench in Mt Arthur Coal did not decisively determine whether a deficiency in consultation renders a direction unlawful, I can and should find that the direction contained within the Vaccination Policy was not a lawful direction because of Qantas’ failure to comply with its WHS obligations.
[85] Mr Tween submits that a direction from an employer that does not comply with other related legislation, such as WHS or privacy legislation, would not be a lawful direction. Mr Tween relies on the earlier Full Bench decision in Lee v Superior Wood Pty Ltd 5. In that matter the Full Bench found that the employer’s policy did not conform to the requirements of privacy legislation and found as follows:
“For the reasons set out above, we consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction ... Given this finding, it is not necessary to consider whether the direction was reasonable. Nonetheless had it been necessary to do so we conclude the direction was unreasonable…”
[Emphasis added].
[86] Mr Tween argues that the direction within the Vaccination Policy does not comply with WHS legislation, because of inadequate consultation, and thereafter by application of the reasoning in Lee v Superior Wood it was not a lawful direction.
[87] Qantas argues that there is nothing illegal about the direction as a risk control measure in the workplace because it plainly falls within the scope of the employment, applying the well-known passage from R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan 6:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon it being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”
[88] In Mt Arthur Coal the Full Bench found that the site access requirement/vaccine mandate was prima facie lawful because it was a requirement to protect the health and safety at work and fell within the scope of the employment and there is nothing ‘illegal’ or unlawful about becoming vaccinated. 7
[89] The Full Bench ultimately found that the direction within the site access requirement was not reasonable because of deficiencies in the consultation process (at [251]). Importantly, the Full Bench found that a failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power (at [188]) and in this context declined to express a concluded view on whether a failure to comply with the statutory duties in the WHS Act goes to the lawfulness of a direction (at [191]).
[90] In Lee v Superior Wood Pty Ltd the employee refused to provide his fingerprint when directed by the employer (because the employer had introduced fingerprint scanners for employees to sign on and sign off at the workplace). The employee did not ever provide his fingerprint. The Full Bench understood the employer’s direction to be that the employee provides his consent to the employer collecting “sensitive information”, being biometric information. 8 In this regard the employer was soliciting personal information from the employee (at [47]). The Full Bench found that the employer’s solicitation was “directly inconsistent with Principle 3 [of the Australian Privacy Principles]”. In other words, the privacy principles directly prevented the employer from issuing the direction to the employee and was therefore unlawful.
[91] By contrast, the consultation provisions in the WHS Act impose obligations on an employer to do certain things, but they do not prevent the employer from doing anything. If Qantas has contravened s.47 of the WHS Act, it has done so by omission - by failing to do something that the WHS requires it to do.
[92] Understood in this way, the direction given by Qantas when it published its Policy, was not conduct in contravention of the WHS Act or otherwise illegal or unlawful.
Reasonable direction?
[93] The consultation prior to the announcement of a vaccination mandate on 18 August 2021 was deficient.
[94] By the time the Vaccination Policy was finalised and published 20 September 2021 Qantas had engaged in extensive consultation across its broader workforce. This consultation was appropriate and adequate in relation to the introduction of a group-wide control measure implemented to respond to the group-wide risks posed by COVID-19.
[95] The Mt Arthur Coal decision needs to be understood in the following context. In that matter a direction had been given to the workforce at the site, but consultation had not been adequate prior to when the direction was issued. The direction was challenged and Mt Arthur provided an undertaking not to implement the outcome of any disciplinary process associated with any employee’s refusal to comply with the Site Access Requirement pending the resolution of the proceedings in the Commission. 9
[96] The Full Bench found that the original direction was not reasonable, solely because of the deficiencies in the consultation process, and identified the way forward to be further consultation in a short period of time before the site access requirements could be imposed. That is, the earlier deficiencies were not incurable and did not render the vaccine mandate direction forever unenforceable. The Full Bench contemplated and effectively endorsed the possibility that exactly the same direction could be issued/enforced once adequate consultation had occurred.
[97] After the Full Bench decision Mt Arthur did undertake further consultation in a short period of time and then announced to all employees that it had made the decision to introduce the site access requirements. On the same day Mt Arthur issued letters to stood down employees regarding the decision to introduce a site access requirement and the next steps for those employees, which included providing the stood down employees with a period of seven days to consider whether they would comply with the new site access requirement. 10
[98] In this matter the consultation undertaken prior to the finalisation of the Policy and the issuing of the direction was adequate, appropriate and reasonable and did not render the direction within the Vaccination Policy unreasonable.
[99] Qantas submitted that the policy can be distinguished from the direction to Mr Tween.
[100] In this case the direction given on 20 September 2021 was that Mr Tween, and every other employee, provide proof of vaccination by 15 November 2021. The non-compliance occurred on 15 November 2021. The reasonableness of the direction must be considered by reference to the circumstances known at the time that it was given.
[101] It was not actively disputed in the proceedings that the Vaccination Policy was otherwise reasonable.
[102] Qantas argued that even if there were deficiencies in consultation as required under s.47 of the WHS Act, those deficiencies do not render the Direction unreasonable when regard is had to all the circumstances, including the fact that COVID-19 posed a group wide risk to the health and safety of Qantas’ workers and customers, there was a group wide risk control policy issue of vaccination requirements, all employees were given an opportunity to provide input in the survey, the overwhelming feedback of employees supported a vaccination requirement, there was extensive consultation on the details of the proposed policy and the Vaccination Policy itself was objectively reasonable.
[103] The Vaccination Policy was one of many control measures applied by Qantas in response to the evolving challenges of the COVID-19 pandemic. It is somewhat self-evident that Qantas’ business had been devastated by COVID-19 in 2020 and 2021, and by the middle of 2021 it was making plans to ramp up its operation. The introduction of the Vaccination Policy was one significant step in the process of returning to flying.
[104] The uncontroverted and uncontroversial evidence of Dr Prasad included the following:
“The effectiveness of the vaccines vary in relation to the Delta and Omicron variants of the virus. Vaccination affords a high degree of protection against transmission, hospitalisation and death from the Delta variant. The degree of effectiveness against transmission is generally lower with Omicron compared to Delta. As Omicron is a more transmissible variant than Delta, vaccination has a lesser effect on blocking transmission of the Omicron variant between persons, but vaccination still provides significant protection against hospitalisation and death from Omicron.
Vaccination against COVID-19 is the most effective and efficient control measure available to prevent the serious health consequences of the virus. Over the course of the Pandemic, unvaccinated adults, in comparison to vaccinated adults, have a higher risk of becoming infected with the virus, transmitting the virus and suffering serious health consequences, including death.
In a fully susceptible (unvaccinated and uninfected) population, one person with Delta would, on average, infect five other people, while one person with Omicron could transmit the virus to about 20 others. In comparison, vaccinations reduce onward transmission by approximately 45 to 65% for the Delta strain. Definitive data is still awaited for the Omicron strain, but early data suggests that vaccination is less effective in preventing onward transmission of Omicron.
A person who is vaccinated against COVID-19, in comparison to a person who is not vaccinated, among other things:
(a) is less likely to become infected with COVID-19, depending on the strain;
(b) is less likely to transmit COVID-19 to others, depending on the strain; and
(c) is substantially less likely to suffer serious health consequences, including death, for all known strains.
As a comparison of unvaccinated and vaccinated populations, the US data published as at 29 January 2022 demonstrated a death rate of 15.3 per 100,000 people for the unvaccinated, and a death rate of 2.3 per 100,000 for the fully vaccinated, as well as 0.7 per 100,000 for the boostered population. Local data for unvaccinated population compared with the vaccinated is not available.”
[105] In all the circumstances I find that the direction contained within the Vaccination Policy was a reasonable direction.
[106] Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Tween’s dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[107] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
[108] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
[109] In Sydney Trains v Gary Hilder [2020] FWCFB 1373 (“Hilder”) the Full Bench summarised the well-established principles for determining such matters at [26] 11:
“The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”
[110] Qantas submits that Mr Tween’s refusal to be vaccinated as required by the Vaccination Policy was misconduct. As indicated in Hilder above, I must determine whether the conduct occurred and what it involved.
[111] Mr Tween submits that there was no valid reason for dismissal (per s.387(a)) because:
(a) Firstly, the mandatory vaccination decision, and subsequent direction, was not lawful because Qantas failed to undertake the prescribed consultation required by NSW workplace health and safety legislation.
(b) Secondly, the way consultation was conducted was unreasonable.
(c) Thirdly, it was unreasonable to deny Mr Tween access to his accrued leave until his vaccination of choice was available.
(d) Fourthly, the dismissal was harsh considering his circumstances.
[112] The first two points above go to the question of whether there was a valid reason related to Mr Tween’s capacity or conduct. Applying Hilder, the last two points go to matters to be considered under s.387(h).
[113] It is well-established that a substantial and wilful breach of an employer’s policy will usually constitute a valid reason for dismissal.12 Applying further the Full Bench’s approach in Hilder, next question to be resolved is whether the breach of the Code was a matter of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal.
[114] The primary focus of the proceedings was the lawfulness and the reasonableness of the direction contained within the Vaccination Policy – necessarily through the lens of Mr Tween’s unfair dismissal claim. For the reasons set out above, I reject the first two propositions that rely on the adequacy of, or reasonableness of, the consultation undertaken by Qantas across its workforce. By the time the Policy was issued in final form on 20 September 2021 large-scale consultation had taken place that was sufficient to render the direction within the Vaccine Policy reasonable and render the failure to follow the direction a valid reason for dismissal.
[115] Having found that the direction within the Vaccination Policy was lawful and reasonable I must then look at whether Mr Tween’s failure to meet the requirements of what the policy were of sufficient gravity to constitute a valid reason for dismissal. Mr Tween’s breach of the policy is fundamental to the terms and the purpose of the policy and in this regard constitutes a valid reason for dismissal.
Procedural fairness
[116] Mr Tween was afforded procedural fairness. Qantas did in fact notify Mr Tween of the reason for dismissal (s.387(b)), gave him the opportunity to respond (s.387(c)), and allowed him to have a support person present at relevant times (s.387(d)). Because of any concerns about his performance and no warnings had been issued in this regard (s.387(e)). Neither party submitted that the size of Qantas’ enterprise or its access to human resource management specialists or expertise was likely to impact on the procedures followed in effecting the dismissal.
What other matters are relevant?
[117] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[118] Having found that there was a valid reason for dismissal, there are several other matters to be taken into account in making a holistic assessment of the overall fairness of the dismissal. In summary those matters go to the very significant consequences of dismissal for Mr Tween given his very long period of unblemished employment.
[119] As stated earlier in this decision, it is a tragedy that Mr Tween has lost his job because of his personal views about vaccination, particularly when he is so long into his career with the one employer in a narrow field of vocation.
[120] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).
[121] Mr Tween was entitled to his personal view. As was submitted on his behalf, “mandatory vaccination has divided opinion in Australia, misinformation about vaccination has been widely distributed and has confused many people considering vaccination”. Quite obviously vaccination, let alone mandatory vaccination, is an issue about which many people have very strong views. Mr Tween’s counsel submitted the following on his behalf:
“It's uncontroversial that asking an employee to take COVID-19 vaccine is a major risk…It's a punt with excellent odds, overwhelmingly excellent odds but it is still asking employees to gamble with their lives to keep their jobs. Overwhelmingly excellent odds but it's a very personal decision for each individual and for some people it's a very difficult decision in the context of the height of vaccine paranoia, it's very challenging for people.”
[122] However, the cold hard reality of the circumstances is that there was no medical reason at all why Mr Tween could not have been vaccinated. There is no evidence of Mr Tween seeking advice from a medical practitioner about the risks to him of receiving any of the approved vaccinations, even once it was clear that his job was in jeopardy. There is no medical reason given as to why Mr Tween’s preference in 2021 was to receive the Novavax vaccine (if it was approved) but not receive any of the other approved vaccines.
[123] The medical evidence provided by Dr Prasad about the risks associated with COVID-19, particularly the risks as they were understood in the second half of 2021, and the advice and urgings from every health authority in the country, were directly at odds with Mr Tween’s personal view.
[124] Qantas introduced its Vaccination Policy during a global pandemic for cogent medical reasons. Mr Tween’s personally held views about vaccination, and his fears, do not exempt him from compliance.
[125] Mr Tween submits that Qantas should have looked at alternatives to dismissal. His employment was long-standing, sustained and productive and, he says, based on that relationship he could expect to enjoy a degree of reciprocity of obligation from Qantas. He argues that even though Qantas is an enormous organisation, it was still required to have regard to Mr Tween as an individual when making decisions about his individual employment.
[126] Similarly, Mr Tween argued that his accrual of nine months of paid leave entitlements was built over 30 years of loyal service and that “any reasonable objective view would conclude that access to some of that leave would see Mr Tween through this difficult period.” There is some merit in this submission, particularly given Mr Tween’s length of service and his personal circumstances.
[127] Mr Tween did not ask to take paid leave until the “outcome meeting” when he was informed that his employment was ending. Mr Tween did not think to ask to use his leave accruals until his union came up with its “little plan” the day before the outcome meeting. By this time, it was too little too late.
[128] Mr Bird was the manager who made the decision to terminate Mr Tween’s employment. Mr Bird acted on the advice of HR personnel.
[129] As the following extract from the cross-examination of Mr Bird reveals, Qantas had zero interest in allowing employees to access leave entitlements (paid or unpaid) to stay in employment and avoid the requirement to be vaccinated:
“You met with Mr Tween and Mr Gill on 13 January; you remember that? Yes, that's correct.
You were involved in a large number of these unvaccinated dismissals; is that right? Yes.
Were these termination meetings all happening at around the same time? They were happening at different points, I guess, because we were also dealing with some cases that were vaccinated late as well, so all happening consecutively but at different points as they were progressing.
When you told me earlier that you considered the question of whether Mr Tween should take leave, HR advised you that that wasn't appropriate; is that right? We considered it on - well, partly on an operational perspective and also as a group perspective. If people were allowed to take leave in engineering then people in other departments would also be allowed to take leave, so, operationally, it was considered it wasn't an option.
So just a blanket policy you're not allowed to take leave to wait for Novavax? Correct.
Mr Tween's particular personal circumstances, the amount of leave he had, his 30 years of perfect service, that didn't matter, there was an HR policy? As I said, it was definitely discussed, we did review it, but the decision was we needed a consistent approach across the business
So you are agreeing with me that there was a blanket policy? Correct.” 13
[130] By cruelty of timing Mr Tween was dismissed one week before the TGA approved the Novavax vaccine for use in Australia. There was a suggestion in Mr Tween’s case that in early January Qantas should have known that Novavax’s approval was imminent.
[131] The proper time for assessment of Qantas’ decision not to allow employees to wait for Novavax was September 2021 when the Vaccination Policy was introduced and in November 2021 when the direction was to be complied with (at least for employees in Mr Tween’s circumstances).
[132] In 2021 the approval of Novavax was a possibility at best. In its publications in August and September 2021 Qantas made it clear that it was not prepared to allow employees to delay being vaccinated to wait for Novavax. In my view this approach was reasonable. Qantas was entitled to be sceptical of employees who professed to be waiting for Novavax. I accept that there were compelling medical reasons, supported by medical evidence, for some people to not receive the earlier-approved vaccines and to wait for Novavax. But for most employees, including Mr Tween, there was no medical basis to differentiate between Novavax and the approved vaccines.
[133] Even in early January 2022 Novavax’s approval was still only a possibility, although public statements in early January 2022 indicated that one way or another a decision would be made by late January.
[134] In my view Qantas was entitled to bring matters of vaccination to a head in 2021 and to require employees to provide proof of vaccination in 2021. Some in the community have been described as “vaccine-hesitant”. From a group wide perspective, to allow some employees to defer vaccination decisions for months or years without a compelling medical reason for doing so, would be operationally unworkable. In Mr Tween’s case, for example, if Qantas had allowed him to take nine months of paid leave, it would not know whether it needed to replace him (because of his vaccination decision) until the end of the nine months.
[135] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[136] Overall I do not find that the dismissal of Mr Tween was harsh, unjust or unreasonable. Some aspects of this case point in favour of finding that Mr Tween was unfairly dismissed, particularly Mr Tween’s length of service, his personal circumstances and the uncertainty within some parts of the general community in relation to vaccination. However, there are significantly stronger aspects of this case that point against a finding that Mr Tween was unfairly dismissed: the seriousness of the global pandemic, the devastation of Qantas’ business, the measures taken by Qantas to return to normal operations, and the objectively and medically sound rationale that underpins the Vaccination Policy.
[137] Accordingly, I will make an order dismissing Mr Tween’s application. 14
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR742943>
Appearances:
Ms L Saunders of Counsel for the Applicant
Mr R Dalton QC of Counsel with Mr M Garozzo of Counsel for the Respondent.
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
May 19, 20.
Final written submissions:
Applicant: 30 May 2022.
Respondent: 6 June 2022.
Printed by authority of the Commonwealth Government Printer
<PR742943>
1 (2021) 310 IR 399 at 458, [2021] FWCFB 6059 at [224].
2 Ibid [98].
3 And that 4% are unwilling or unable to be vaccinated and 7% are undecided or unwilling to say.
4 (2021) 310 IR 399 at 458, [2021] FWCFB 6059 at [224].
5 (2019) 286 IR 368, [2019] FWCFB 2946 at [58] and [60].
6 (1938) 60 CLR 601 at 621.
7 (2021) 310 IR 399 at 426, [2021] FWCFB 6059 at [85].
8 (2019) 286 IR 368, [2019] FWCFB 2946 at [25], [28],
9 (2021) 310 IR 399 at 408, [2021] FWCFB 6059 at [15].
10 [2021] FWC 6626 at [48]-[49]
11 Citing Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]- [35].
12 B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1, [2013] FWCFB 6191 at [36].
13 Transcript, 19 May 2022 at [PN996] – [PN1002].