| [2022] FWC 2235 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Annunziata Cinque
v
Jetstar Airways Pty Ltd
(U2022/5543)
COMMISSIONER O’NEILL |
MELBOURNE, 24 AUGUST 2022 |
Application for an unfair dismissal remedy
[1] This decision concerns an application for an unfair dismissal remedy made by Ms Annunziata Cinque against Jetstar Airways Pty Ltd. Ms Cinque’s employment was terminated effective 28 April 2022. The Applicant contends, and Jetstar denies, that the dismissal was harsh, unjust, and unreasonable.
[2] After hearing from the parties, I determined that conducting a hearing was the most effective and efficient way to resolve the matter. I granted permission for Jetstar to be legally represented, noting that the Applicant did not object.
[3] At the hearing on 10 August 2022, the Applicant was represented by Mr Glenn Floyd, an unpaid representative. Ms Cinque gave evidence in support of her case. Dr Prasad, Mr Madden and Mr Franzi each gave evidence for Jetstar.
[4] For the reasons below, I have found that the Applicant’s dismissal was not unfair.
[5] On 8 August 2022, the Applicant sought an order requiring the attendance of Mr Alan Joyce, CEO of Qantas and Mr Gareth Evans, CEO of Jetstar. This application was made two days prior to the scheduled hearing on 10 August 2022, which the parties were notified of on 21 June 2022. At a mention on 28 June, Mr Floyd indicated that he wished to cross-examine these two people and it was made clear to him that he could seek an order requiring their attendance. The Respondent filed its material by 26 July, at which point it was apparent that they were not calling either Mr Joyce or Mr Evans to give evidence. However, the application for an order to attend was not made until two days before the hearing and no explanation was provided as to why the order was not sought in a timely way.
[6] The application for an order was dealt with at a hearing on 10 August. Mr Floyd submitted that the Applicant “wishes to face her accusers” and that questions would be put to them that showed they breached her contract of employment and committed other unlawful acts. It was, in Mr Floyd’s terms, a moral and ethical issue. Mr Floyd referred to two further pieces of evidence that he had recently obtained, however these were never produced.
[7] The issues in the substantive case are essentially whether the Direction given to Ms Cinque was a lawful and reasonable one, and if so, whether she complied with it (or was she rendered incapable of doing so by Jetstar’s actions). As will be seen later in this decision, there was no dispute that Jetstar required Ms Cinque to be vaccinated, that she made an appointment to be vaccinated, nor that administration of the vaccination was refused. Having regard to all of the circumstances, I was not satisfied that there was sufficient relevance and probative value to warrant the orders being made.
[8] Ms Cinque has been employed by Jetstar since 2010. At the time she was dismissed she was on a temporary secondment as a Senior Knowledge and Training Specialist, although her substantive position was Team Leader Domestic Terminal.
[9] Ms Cinque’s secondment engagement was subject to a written contract of employment signed by the Applicant on 4 May 2021. 1 A contract in substantially the same terms dated 26 April 2019 applied to her substantive position.2
[10] Ms Cinque’s contract of employment included the following terms:
“9. Company Policies and Procedures
9.1 The Company has various policies and procedures which apply to your employment (including Qantas Group policies). You must familiarise yourself with these policies. Where the policies place obligations on you, you must comply with them.
9.2 Failure to follow the Company’s policies and procedures may warrant disciplinary action, up to and including termination of your employment.
9.3 The Company may review, vary, add to or withdraw the policies from time to time in its absolute discretion. The Company policies and procedures do not form part of this Agreement.”
And:
“18. General
18.1 …..
18.2 This Agreement may only be amended or supplemented in writing, signed by you and by a representative of the Company.
……”
[11] In September 2021, the Qantas Group introduced a COVID-19 Vaccination Policy (Policy). Under the Policy, Jetstar employees, including the Applicant, were required to provide evidence that they were fully vaccinated against COVID-19 by certain dates. The Policy was introduced to provide consistency of protection against COVID-19 for employees and customers and to be a reasonable additional control for employees against exposure to and transmission of COVID-19. The Policy made clear that all employees were directed to comply with the requirements in the Policy by the relevant date (the Direction), and that the likely outcome of non-compliance would be termination of employment.
[12] Ms Cinque did not provide evidence that she was vaccinated by the required date which in her case was initially 15 November 2021, but subsequently altered to 31 March 2022.
[13] Prior to her dismissal, the Applicant raised numerous concerns and queries about the Policy, sought a temporary exemption, raised a grievance and submitted an internal appeal against the decision to terminate her employment.
[14] On 1 April 2022, the Applicant was sent a letter providing her with an opportunity to respond to the potential termination of her employment for failing to comply with the Policy. The Applicant’s response on 6 April 2022 included that she did not disobey the Direction, that she had attended a scheduled appointment to be vaccinated and that the pharmacist refused to inject her, as she was there “involuntarily, under coercion, manipulation, undue pressure and threats of termination of employment” which “did not constitute valid or informed consent,” as this was contrary to the Australian Immunisation Handbook criteria for valid consent and ATAGI guidelines. 3 Ms Cinque included a statutory declaration dated 18 March 2022 and shortly thereafter provided slightly different declarations dated 7 April 2022 and 11 April 2022. Each of them included:
“I attended Pharmacy 4 Less Reservoir on Friday 18 March 2022 to receive a COVID-19 injection in response to directions from the Qantas Group COVID-19 Vaccination Policy.
The Policy requires me to be vaccinated with a COVID-19 injection to retain my employment.
I informed the Pharmacist; Hinad that I attended involuntarily, under pressure, coercion, manipulation, and threat of termination of my employment.” 4
[15] For the hearing, Ms Cinque also provided an affidavit affirmed 27 June 2022 and gave oral evidence about the steps she took to comply with the Direction. The Applicant made a booking to receive the COVID-19 vaccination on 18 March 2022 at Pharmacy 4 Less at Reservoir. 5 When she attended the pharmacy, she was taken to a private room by a pharmacist named Hinad. She was given and signed a consent form confirming that she had received and understood information provided to her about COVID-19 vaccination and that she agreed to receive a course of COVID-19 vaccine.6 Ms Cinque told the pharmacist that she was:
“…attending for the Injection after receiving a Draconian threat of sacking by my employer if I was not injected. I also advised the Injecting Practitioner that the Federal Health Department Immunisation Guidelines Criterion 2, ‘PROHIBITS’ any injecting by any Injecting Practitioner, of any persons attending for Injections under any Undue Pressure, Coercion or Manipulation to be injected; and that the sacking threat made against me constitutes Undue Pressure, Coercion or Manipulation to be Injected or be sacked…” 7
[16] The pharmacist said that in light of what Ms Cinque had said she was not prepared to administer the vaccination. 8 The Applicant then gave the pharmacist a template document and asked her to read and sign it. The template document is attached to Ms Cinque’s affidavit, and Ms Cinque had previously obtained it directly from Mr Floyd with whom she had been communicating:
“I state and say as the practitioner administering this injection, that I have been informed by the person named as follows (Annunziata Cinque) who is expected to take this injection from me, that this person presents for the injection under involuntary, and extreme undue pressure, coercion or manipulation, by the government and/or the employer to be injected. I fully understand that this extreme undue pressure, coercion or manipulation to be injected, is brought about by the government mandates of fines and exclusion from schools, hospitals, public venues etc. and the employer making threats of employment termination if the person is not injected as directed by the employer.
I fully acknowledge that The Australian Immunisation Handbook Guidelines requires me at law, to fully and comprehensively screen anyone before injection, and obtain their Valid Consent to the injection, specifically under Valid Consent Criterion 2., which obliges me legally to ensure the injections are given ONLY voluntarily and in the absence of undue pressure, coercion or manipulation.
I therefore (as Practitioner administering this injection), fully understand and fully agree, that if I proceed with injections after now being advised that the injections are not voluntary and are expected to be done under extreme undue pressure, coercion or manipulation, that I am violating The Australian Immunisation Handbook Guidelines Criterion 2. On ‘Valid Consent’., I also fully understand, if I proceed to Covid-Inject, I will be committing a Criminal Act of Assault and Battery; and I will be liable and will be criminally charged and pursued personally and professionally (as will my employer be), under both criminal statute law and civil TORT litigation for ALL damages and harm caused.” 9
[17] After the pharmacist said she was not prepared to sign it, Ms Cinque completed the document noting the refusal to sign.
[18] Counsel for the Respondent put to Ms Cinque that given the steps she had taken, she had been intent on getting a formal record of not being vaccinated. Ms Cinque said that she did want to have evidence to provide to Jetstar that she had followed their directions. 10 It was put to her that she had acted out a conscious and deliberate plan developed with Mr Floyd. That plan was to book an appointment, attend, ostensibly consent to being vaccinated, but by providing the template and telling the pharmacist that any injection would be involuntary and the pharmacist exposed to legal action, knew that the inevitable result was that the pharmacist would not administer the vaccination. Ms Cinque did not accept this proposition however her evidence was “Well, I didn’t know the technicality of that particular law in terms of the Immunisation Handbook Guidelines, so I am quite happy to say that I did put that procedure to the test and the outcome was that she could not inject me under those guidelines.”11 The Applicant’s signed witness statement dated 3 August 2022 included:
“The threats of dismissal for non-Injection acted on me as a major pressure, coercion, and I knew it was Unlawful for any Injecting Practitioner to Inject me if I attended under a sacking ultimatum threat for non-Injection, and I knew no doctor could lawfully administer the Medical Treatment experimental Covid-Injections because I attended under Undue Pressure, Coercion or Manipulation of a sacking ultimatum if not Injected, whereby if being Injected, the Injecting Practitioner breaches the Federal Health Department Federal Immunisation Guidelines Criterion 2.” 12
[19] Ms Cinque’s employment was terminated on 28 April 2022 for misconduct for failing to comply with the Direction that she be fully vaccinated against COVID-19 and provide evidence of that.
[20] Mr Madden, Jetstar’s Head of Customer, gave evidence that prior to dismissing the Applicant, he considered and rejected the possibility that the Applicant could continue to work from home as an alternative to being vaccinated. Mr Madden considered that she had had sufficient time to be vaccinated and did not realistically think that she would ever do so. 13
[21] The Applicant sought to introduce into evidence affidavits of 13 other people who had also made bookings to be vaccinated, provided the same template document and were not administered the COVID-19 vaccination. None of these people were available for cross-examination and Mr Floyd did not contend that any of them were employees of the Respondent. His submission was that they evidenced a widespread practice that medical practitioners refuse to administer vaccinations where they are told they are prohibited by law from doing so. I did not admit this evidence as it had no relevance to the matters to be determined in relation to Ms Cinque.
[22] In cross-examination Ms Cinque was asked a series of questions about her involvement in a Federal Court proceeding against Jetstar challenging the lawfulness of its COVID-19 Policy in which she was a named respondent. She said that she had put forward an expression of interest but advised the lawyers in the case that she had been added to the proceedings due to a misunderstanding and to remove her from them. The Applicant was subsequently removed and received no further communications about the case.
[23] Ms Cinque confirmed that she remains unvaccinated from COVID-19.
[24] Dr Prasad, Head of Occupational Health for the Qantas Group including Jetstar, gave extensive and unchallenged evidence about the COVID-19 pandemic, vaccines and their efficacy, other control measures, risk management at the Qantas Group, and the implementation of the COVID-19 Vaccination Policy.
[25] Mr Franzi who at the time of making his statement was the Executive Manager Group Safety & Security for Qantas, gave extensive and unchallenged evidence about the effect of the COVID-19 pandemic on the Qantas Group including Jetstar, the range of measures introduced to protect staff and customers from the health and safety risks at play and to mitigate the effects of the pandemic on its business and the rationale for and process of developing and implementing the Policy and Direction.
[26] After the hearing Mr Floyd emailed my chambers raising “matters of potential serious perjury and/or hostile witness testimony” in relation to Dr Prasad and Mr Madden. In a further email on 12 August, the allegations against Mr Madden were not pursued. However, in relation to Dr Prasad, Mr Floyd stated:
“And we specifically draw your attention to the statement he made when I asked this man the question QUOTE: “did you know that a directive with a non-negotiable sacking threat for not undertaking a medical treatment of experimental covid Injections was made to the Applicant”? ENDQUOTE.
And I followed QUOTE: “did you know that directive was made sir”? ENDQUOTE
Mr Prasad’s reply was QUOTE: “No” ENDQUOTE.
Commissioner, prima facie, this appears a most serious criminal perjury to us if this man is stating he is unaware that a non-negotiable directive was given demanding a covid-Injection with a sacking ultimatum threat for non-Injection.
Please investigate this in your deliberations; if this constitutes criminal perjury; the entire evidence is to our understanding invalid and destroys the respondent’s case entirely and we are seeking a CCDP investigation of possible indictable perjury charges per below.”
[27] The Respondent strongly objected to Mr Floyd’s allegations and said they were unarticulated, spurious and baseless, that these serious allegations were not put to either witness and were not raised in final submissions.
[28] The relevant transcript that Mr Floyd refers to is:
MR FLOYD: I’ll just move through and try and get the medical ones. Thank you, you’ve already determined that you have medical qualifications, thank you Dr Prasad. Could you please answer the Commission yes or no, did the directive that was given have a non-negotiable second threat for not undertaking medical treatment of experimental COVID injections? -Are you asking did the policy specify - - -
No, the directive, the directive. Did it have a non-negotiable ultimatum threat of sacking for not undertaking the medical treatment of experimental COVID injections – the directive? -
MR DALTON: I object to this question on the basis that Mr Floyd has not established with this witness knowledge on the part of this witness, as to a particular directive. That needs to be done before that question can be asked.
MR FLOYD: Thank you. With all the information given by the organisation to the applicant in the second process, it’s understood that the directive was made – that a non-negotiable directive was made, you must be injected. If you are not injected, you will be sacked.
MR DALTON: I object; it’s not a question.
MR FLOYD: I’m clarifying that is the directive I’m talking about, sir.
THE COMMISSIONER: It’s not clear to me which – you need to be really clear which direction you’re asking the witness whether he knows about it.
MR FLOYD: Okay. Did you know that a directive to have a non-negotiable second threat for not undertaking medical treatment with experimental COVID injection was made to the applicant? -I’m aware of the policy regarding vaccination.
Did you know that directive was made, sir? -I’m aware of the policy requiring it.
I didn’t ask that question, sir. Could you please answer yes or no. Did you know that that directive was made? -No.
You didn’t know that? Thank you. Could you please advise the Commission yes or no, well it’s established of course, the lady was sacked, because of not being injected, so that’s established as fact. Could you please advise the Commission yes or no, did the non-negotiable sacking ultimatum threat penalise the applicant with a sacking penalty for non-injection? Was she sacked because she didn’t – she wasn’t injected? -
MR DALTON: I object to the question. It’s all premised on propositions that this witness has not confirmed knowledge of or agreement to.
THE COMMISSIONER: Perhaps Mr Floyd, you might ask Mr Prasad if he’s had any involvement or knowledge of the particular circumstances leading to Ms Cinque’s dismissal?
MR FLOYD: Thank you, and Mr Prasad, of course, this is under sworn testimony. Did you have any knowledge of the sacking processes which involved generally all peoples, because they’re all identical, or in Ms Cinque’s case, whereby she was given a sacking threat that if she wasn’t injected, she would be sacked? -I was aware of the policy requirement to be vaccinated and of the processes that ensued for people who remained non-compliant in the policy by the relative compliance state. I wasn’t aware specifically of Ms Cinque’s submission or circumstances or case prior to this process.
But the question also is, isn’t is the same process for every termination, identical? -Every case is dealt with on its merits, so on its individual features. 14
[29] There is absolutely no basis for Mr Floyd’s very serious allegations. Dr Prasad’s evidence was, in summary, that he was aware of the policy requirement to be vaccinated and of the processes that ensued for people who remained non-compliant, but that he wasn’t aware specifically of Ms Cinque’s circumstances.
[30] As I understand the submissions made on her behalf, Ms Cinque does not challenge any of the procedural aspects of her dismissal and concedes that it was likely to have been a fair process. 15 Further, she does not contend that she was coerced or forced to be injected and acknowledges that she could have resigned. However that is said to be totally separate to the fact that her employer threatened her with dismissal for not doing so.16 The Applicant’s “first and sole priority” is that the Directions (and consequent sackings) were unlawful and unreasonable.17
[31] The Applicant contends that the dismissal was unfair as there was no valid reason for her employment to be terminated. That is put on 2 grounds: the Direction was neither lawful nor reasonable because it involved illegality or unlawfulness; and secondly because the Applicant did not refuse to comply with the Direction. Rather, she did all that was possible for her to do but was thwarted from complying with it because of the company’s action in threatening dismissal if she was not vaccinated.
[32] In relation to whether the Direction was lawful and reasonable, the Applicant contends that Jetstar’s threat of dismissal constituted undue pressure, coercion and manipulation to be injected, and that injecting practitioners are prohibited under Federal Immunisation Guidelines to administer injections in these circumstances. In short, the employer’s “non-negotiable Directive to get covid-Injected under a Draconian sacking ultimatum threat (get Injected or get out), constitutes Undue Pressure, Coercion and Manipulation to be Injected” (emphasis in original removed). 18
[33] The Direction is also said to be illegal because it was a breach of the Applicant’s contract of employment, in that:
a) The Direction did not fall within the scope of Ms Cinque’s contract of employment, which it must in order to be a lawful term under R v Darling Island Stevedoring, 19 and there was no express or implied term requiring the Applicant to undertake any “Medical Treatment experimental Covid-Injections.”20
b) The contract required consent for any alterations and therefore the unilateral alteration was a breach of her contract.
c) It was beyond power as there is no statutory power or authority for any employer to direct an employee to undertake any “Medical Treatment experimental Covid-Injections” and constitutes criminal acts because medical services are only able to be made and provided by medical practitioners – receiving an injection is a medical procedure. The Respondent is not a medical practitioner and it’s an offence to give medical directions or prescribe a medical treatment to undertake “Medical Treatment experimental Covid-Injections.” In doing so, the Direction was unlawful. 21
d) The employer used coercion, pressure intimidation, manipulation and/or bullying of a sacking ultimatum threat to undertake “Medical Treatment experimental Covid-Injections,” and this is unlawful. 22
[34] Earlier submissions referred to contraventions of General Protections provisions, including ss.342, 343, 344 and 66L of the Fair Work Act 2009 (Cth) (Act), however these claims were neither elaborated on nor advanced at the hearing. They do not seem relevant.
[35] In relation to the second ground, the Applicant contends that she did not refuse to comply with the Direction. Rather, she did all that was possible for her to do but was thwarted from complying with it because of the company’s action in threatening dismissal if she was not vaccinated. She made the booking, she did not refuse to be vaccinated, she signed the informed consent form, but it was the injecting practitioner that refused to administer the injection. The existence of the threat meant that it would be unlawful for any medical practitioner to administer the injection under Federal Immunisation Guidelines. The threat of dismissal is said to constitute undue pressure, coercion and manipulation to be vaccinated.
[36] The Respondent submits that the Direction was lawful and reasonable, and the Applicant’s failure to comply with it was a valid reason for dismissal. The Policy and the Direction were lawful because it is an implied term that an employee must obey lawful and reasonable directions, and there was an express term in her contract of employment which required her to comply with Jetstar’s policies and procedures, including Qantas Group policies. This express term was in the written contract both in relation to her substantive position, and the seconded position.
[37] The Respondent relied on the test of lawfulness of a direction in R v Darling Island Stevedoring, per Dixon J: 23
“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.”
[38] The Respondent submits that the Direction is clearly within the scope of Ms Cinque’s employment and there was nothing unlawful about either the Policy or the Direction. The Respondent referred to a recent decision of Deputy President Easton in Stuart Tween v Qantas Airways Pty Ltd 24 where the Deputy President, considering a challenge to the same Policy and Direction in respect of Qantas, concluded that “the direction given by Qantas when it published its Policy, was not conduct in contravention of the WHS Act or otherwise illegal or unlawful.”25
[39] The Respondent submits that the Direction was also reasonable for reasons including that it avoided having to selectively enforce government vaccination mandates that would apply to parts of its workforce which would cause significant challenges, it ensured compliance with any such public health orders, there were no suitable alternative control measures, has helped maintain business continuity, and was developed in consultation with employees, health and safety representatives and unions. Again, in the decision in Tween, Deputy President Easton found that the Direction was reasonable.
[40] The Respondent says that the Applicant was entitled to choose not to comply with the Policy and Direction, and she exercised that choice. Whilst that choice had to be exercised with the spectre of likely dismissal did not mean that the Direction subjected the Applicant to coercion, manipulation or undue pressure. The Respondent referred to the observation of the New South Wales Court of Appeal in Kassam v Hazzard; Henry v Hazzard, “many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour.” 26
[41] The Respondent submits the Applicant failed to comply with the Direction, and that her attempts to separate herself from the consequences of her conduct must be rejected. The reason Ms Cinque didn’t receive the vaccine is because she indicated to the pharmacist that she was not consenting to vaccination. That is, she indicated that she was unwilling to receive the vaccine voluntarily. That was a choice of the Applicant, and she did not get vaccinated as a direct consequence of her actions.
[42] The Respondent does not rely on the existence of public health orders mandating vaccination of airport workers, in support of its case.
[43] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
[44] There is no dispute between the parties and I am satisfied on the evidence that Ms Cinque was a person protected from unfair dismissal, that the Small Business Fair Dismissal Code did not apply, this was not a genuine redundancy and the application was made within the period required.
[45] In considering whether Ms Cinque’s dismissal was harsh, unjust and/or unreasonable, I am required to take into account the matters specified in section 387(a) to (h) of the Act.
[46] The employer must have 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. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 27
[47] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. 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).
[48] 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. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. The employer bears the evidentiary onus of proving that the conduct on which it relies took place.
[49] There is no dispute that Ms Cinque did not provide evidence that she was vaccinated which she was required to do under the Policy and the Direction. The question is whether it was a lawful and reasonable direction, and if so, whether she complied with it.
[50] The duty to obey lawful and reasonable directions was considered recently by the Full Bench of the Commission in CFMMEU v Mt Arthur Coal Pty Ltd. 28 I adopt that analysis. The duty to follow lawful and reasonable directions is a term implied into all contracts of employment. There was no exclusion of this common law term in Ms Cinque’s written contract and there was an express term requiring her to comply with Jetstar’s policies. I deal with the effect of that term further below. It is therefore immaterial that there was no express or implied term in Ms Cinque’s contract of employment requiring her to become vaccinated or as the Applicant puts it “to undertake Medical Treatment experimental Covid-Injections,” and it was not a breach of her contract.
[51] However, Jetstar’s contractual right to impose obligations under company policies, must be read in the context of the obligation for any direction to be lawful and reasonable.
[52] The submission that the Direction contravened Ms Cinque’s contract of employment by unilaterally varying the contract without her consent is misguided. Subclause 9.1 imposes an express requirement on Ms Cinque to comply with any obligations placed on her by Jetstar’s policies and procedures. Under subclause 9.2 any failure to comply can lead to disciplinary action, including termination. Under subclause 9.3 of the contract, Jetstar was able to vary policies or add new policies throughout the employment. The effect of the final sentence in subclause 9.3, “The Company policies do not form part of this Agreement” means that any such pre-existing, varied or new policies do not form part of the contract of employment in the sense that they are not incorporated into the contract. However, that does not detract from or conflict with the Applicant’s obligation under subclause 9.1 to comply with such policies. Further, because subclause 9.3 permits variation, additions, and changes to policies at the Company’s discretion, the introduction of a new policy, such as the COVID-19 Vaccination Policy does not require a change to the contract of employment. It is permitted under the existing contract agreed to by Ms Cinque on 4 May 2021. Accordingly, the provision in subclause 18.2 of the contract wherein both Ms Cinque and Jetstar need to sign any amendment or supplementation of the contract of employment, is not relevant.
[53] There is no doubt that the Applicant was faced with an invidious choice. She had to choose between complying with the Direction against her wish not to be vaccinated, or in all likelihood, lose her job.
[54] In Mt Arthur Coal, the Full Bench acknowledged that the practical effect of the site access requirement (mandating vaccinations) is to apply pressure to employees to surrender their bodily integrity (by undergoing medical treatment) in circumstances where they would prefer not to do so and that this is a relevant consideration in assessing the reasonableness of a direction. However, the Bench did not accept that it constituted coercion in the legal sense, rendering the requirement unlawful. 29
[55] This is also consistent with the observations of Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard where His Honour said: 30
“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.”
[56] Consistent with the Full Bench decision in Mt Arthur Coal, I do not accept the Applicant’s submission that the Direction constitutes coercion in the legal sense or is otherwise unlawful. Whilst the Direction did involve significant pressure on the Applicant to become vaccinated, it was not unlawful pressure.
[57] I also do not accept the submissions on behalf of the Applicant that the Direction was otherwise beyond power, as the Direction did not itself, force any employee to be vaccinated.
[58] I am satisfied that the Direction was within the scope of Ms Cinque’s contract and involved no illegality.
[59] As to the question of whether the Policy and the Direction were reasonable, I accept Dr Prasad’s and Mr Franzi’s evidence and consider there was an objectively sound basis for the introduction of the Policy and the Direction. I note that the same Policy and Direction were found to be lawful and reasonable in the decision of Deputy President Easton in Tween and I endorse the Deputy President’s analysis and conclusions. When it was applied to Ms Cinque, the justification for the Direction remained, as did the risks with the number of people being infected from the Omicron variant increasing, and the relaxation of some public health directions in some parts of Australia.
[60] I consider that the Policy and Direction were lawful and reasonable.
[61] I turn now to the Applicant’s submission that she did not refuse to comply with the Direction. In essence, Ms Cinque contends that she did all that was possible to comply but was unable to because of the company’s own action in threatening dismissal if she was not vaccinated. The existence of this threat rendered it impossible for any medical practitioner to administer the vaccination, because she could not give informed and valid consent to be vaccinated.
[62] The Immunisation Guidelines were not formally in evidence. However, I understand that Mr Floyd was referring to the Australian Immunisation Handbook. 31 The Handbook provides guidance for practitioners in administering vaccinations and includes that the person must give valid consent to be vaccinated. The second of four criteria for valid consent is that “it must be given voluntarily in the absence of undue pressure, coercion or manipulation.”
[63] This submission must be rejected. Ms Cinque chose to take the template document with her to the pharmacy and to tell the pharmacist that she was unwilling to receive the vaccine voluntarily. The template document, which includes that the pharmacist had been advised that “the injections are not voluntary,” makes it crystal clear that Ms Cinque was not, in fact, consenting to be vaccinated, irrespective of having earlier signed a consent form. Through the template document, Ms Cinque informed the pharmacist that she was prohibited from administering the vaccination, and that if she did so she would be committing a criminal act and would face criminal and civil legal action. Ms Cinque stated that she was only attending under undue pressure, coercion or manipulation, by reason of the threat of her employment being terminated if she was not vaccinated.
[64] One of the difficulties with Ms Cinque’s submission is that that is not the case. The Direction was a lawful and reasonable one and did not constitute unlawful coercion. The Guidelines are not legal instruments, but clinical guidance to medical practitioners. Their existence does not render the Direction unlawful. By choosing to communicate this information to the pharmacist, Ms Cinque made it clear that she was not consenting to being vaccinated, irrespective of having signed a consent form. In choosing to do so, Ms Cinque did not receive the COVID-19 vaccination as a direct result of her actions. Ms Cinque’s signing of the consent form does not alter this.
[65] Whilst decisions in other cases are of limited value, as each case involves its own facts and circumstances, Mr Floyd made essentially the same argument on behalf of another dismissed employee in Anthony Girod v Swan Transit. 32 Deputy President Beaumont concluded that the decision of whether to voluntarily give consent to be vaccinated sat with the applicant. No appeal against the Deputy President’s decision rejecting that argument has been made. Mr Floyd submitted that this was a totally different situation because the applicant in that case had not signed an informed consent form, unlike Ms Cinque. The distinction Mr Floyd seeks to make is not material, as Ms Cinque’s signing of that form was effectively negated by communicating to the pharmacist that she was there involuntarily and did not want to be vaccinated.
[66] Mr Floyd submitted that the decision in Tween is distinguishable because the applicant in that case had refused to be vaccinated, unlike Ms Cinque who had consented. However, any such distinction does not go to the question of whether the Policy and Direction were lawful and reasonable.
[67] I also consider that there was another valid reason for the Applicant’s dismissal. As an unvaccinated person, Ms Cinque was unable to meet the inherent requirements of her role, which included being required to attend the workplace specified in her written contract, the Melbourne Head Office. 33 She was unable to do so because she was not vaccinated, and Jetstar had considered and rejected the Applicant’s suggestion that she continue working from home as an alternative to being vaccinated.34
[68] It is clear that the Applicant was notified of the reason for her dismissal. This weighs against a finding of unfairness.
[69] There was no unreasonable refusal to allow a support person and this weighs against a finding of unfairness.
[70] As the Applicant was not dismissed for unsatisfactory performance this consideration is not relevant in this case.
[71] There is nothing before the Commission that suggests that Jetstar’s size negatively impacted the procedure it adopted to effect the Applicant’s dismissal. Jetstar had access to and made use of human resource expertise. These are neutral considerations.
[72] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Whilst Mr Floyd’s submissions were confined to the question of whether the Direction was lawful and reasonable, I have also considered Jetstar’s decision to not allow Ms Cinque to work from home as an alternative to being vaccinated and I consider this was reasonable and does not point to unfairness. I also consider that Jetstar’s responses to the many and very detailed questions and concerns Ms Cinque raised were dealt with adequately. I have also considered Ms Cinque’s long period of employment with Jetstar.
[73] Having considered the criteria in s.387 of the Act, my overall assessment is that the dismissal of Ms Cinque was neither harsh, unjust nor unreasonable. I am satisfied that there was a valid reason for her dismissal and that there were no procedural defects in the dismissal process. No other matters point to a finding of unfairness. I find that Ms Cinque’s dismissal was not unfair, and therefore her application must be dismissed.
[74] A separate order dismissing the application will be issued.
COMMISSIONER
Appearances:
G Floyd for the Applicant.
R Dalton QC with M Minucci of Counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
August 10.
Printed by authority of the Commonwealth Government Printer
<PR745054>
1 Exhibit R3, Annexure JM-3 to Witness Statement of James Madden.
2 Exhibit R3, Annexure JM-5 to Witness Statement of James Madden.
3 Exhibit R3 Annexure JM-40 to Witness Statement of James Madden (Digital Hearing Book p.577) (DHB).
4 Exhibit R3 Annexures JM-40, JM-41 and JM-42 to Witness Statement of James Madden (DHB pp.585, 591 and 597).
5 Exhibit A2 Affidavit of Annunziata Cinque.
6 Ibid.
7 Ibid.
8 Transcript PN219.
9 Exhibit A2 Affidavit of Annunziata Cinque.
10 Transcript PN300.
11 Transcript PN323.
12 Exhibit A1 Witness Statement of Annunziata Cinque at [29].
13 Exhibit R3 Witness Statement of James Madden at [69].
14 Transcript PN506-520.
15 Transcript PN69.
16 Applicant’s Statement of evidence (DHB p.176).
17 Ibid.
18 Exhibit A3 Applicant’s Statement of Claim.
19 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday & Sullivan (1938) 60 CLR 601.
20 Exhibit A1 Witness Statement of Annunziata Cinque at [10].
21 Ibid [11]-[14], [24].
22 Ibid [26].
23 (1938) 60 CLR 601, 621-2.
25 Ibid [92].
26 [2021] NSWCA 299 at [170] per Leeming JA.
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
28 [2021] FWCFB 6059 at [64]-[81].
29 Ibid [222]-[223].
30 [2021] NSWSC 1320 at [63].
31 Department of Health and Aged Care, Australian Immunisation Handbook, (21 April 2022) <Preparing for vaccination | The Australian Immunisation Handbook (health.gov.au)>.
33 Exhibit R3 Witness Statement of James Madden at [71].
34 Ibid.