1 Fair Work Act 2009 s.394—Unfair dismissal Megan Willoughby v Jetstar Airways Pty Ltd (U2022/6518) VICE PRESIDENT ASBURY BRISBANE, 17 APRIL 2023 Application for an unfair dismissal remedy Overview [1] Ms Megan Willoughby (the Applicant) applies to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of her employment by Jetstar Airways Pty Ltd (Jetstar/the Respondent). The application was made on 21 June 2022. The Applicant was employed by Jetstar in customer and passenger services roles for approximately 15 years from August 2007 and at the time of her dismissal, held a position as an Airport Duty Manager at the Brisbane Domestic Airport Terminal on a permanent full-time basis, and was paid a gross annual salary of $108,300.01 (plus superannuation)1 as well as other applicable allowances and additional payments in accordance with the Airline Operations – Ground Staff Award 2020. The Applicant’s dismissal took effect on 1 June 2022. The Applicant sought reinstatement to the position of Airport Duty Manager and, if reinstatement is not appropriate, compensation. [2] Jetstar is a member of the Qantas Group (Qantas/Qantas Group). Qantas conducts international and domestic airline operations through several business divisions and associated businesses, including Jetstar,2 Qantas’s low-cost airline which operates both international and domestic routes.3 [3] The Applicant was dismissed for misconduct, based on the Respondent finding that she had wilfully failed to comply with the Qantas Group COVID-19 Vaccination Policy, which required all Australian-based employees of the Qantas Group to be fully vaccinated with an approved COVID–19 vaccine and submit evidence of vaccination to the Qantas HR intranet system, Workday, by the Compliance Date – 15 November 2021 for Category A employees and 31 March 2022 for Category B employees. Alternatively, employees could seek an exemption from the vaccination requirement on medical or non-medical grounds by the relevant compliance date. The Applicant, being a holder of a Red Aviation Security Identity Card (ASIC), was classified as a Category A employee and the relevant Compliance Date for the Applicant was 15 November 2021. [2023] FWC 899 DECISION [2023] FWC 899 2 [4] The Vaccination Policy states that employees who were on special leave without pay (SLWOP), leave without pay (LWOP), or paid or unpaid parental leave at the Compliance Date, were given an extension to comply and were permitted to submit evidence of vaccination by their first duty, workday or shift back at work following the conclusion of the relevant leave period. The Vaccination Policy is otherwise silent as to whether a similar extension applied to employees on another form of leave, such as long service leave or annual leave. However, a document entitled Qantas Group COVID – 19 Vaccination Policy: Detailed Employee Q&A,4 circulated to all employees with the Vaccination Policy, states that employees on other forms of leave, such as annual leave, long service leave or sick leave, were required to comply with the Vaccination Policy by the Compliance Date, unless an exemption had been granted. [5] On or around 10 November 2021, the Applicant commenced a 6-month period of long service leave until early May 2022. There is some discrepancy in the in the evidence about the date the Applicant’s long service leave commenced and was scheduled to conclude. There were discussions between the Applicant and various managers of the Respondent prior to the Applicant commencing her long service leave, including in relation to whether her long service leave would be approved or paid if she was not compliant with the Vaccination Policy. There is some dispute about what the Applicant was told during those discussions. [6] The Respondent contends that the Applicant was informed that she was still required to comply with the Vaccination Policy by 15 November 2021 notwithstanding the fact that she would be on long service leave on that date. The Respondent also contends that the Applicant was informed that any non-compliance would result in the initiation of a disciplinary process, and she would be contacted and presented with the options of ending her long service leave to participate in that process or participating in the disciplinary process at the end of her long service leave. The Applicant was not vaccinated by 15 November 2021, nor did she apply for an exemption. [7] On 17 November 2021, the Applicant received a letter headed “Non-compliance with the Qantas Group COVID – 19 Vaccination Policy” from her direct manager, Mr Jenkins (the Non-compliance Letter). The Applicant was informed that disciplinary action, including the termination of her employment, was being considered due to her failure to comply with the Vaccination Policy. The Applicant did not opt to end her long service leave to participate in the process, and was requested to provide a written response by 4 May 2022 as to why her employment should not be terminated. [8] The Applicant received her first dose of Novavax Vaccine on 19 April 2022. On 5 May 2022, the Applicant sent a response to the Non-compliance letter essentially stating that she did not believe that the Vaccination Policy applied to her while she was on long service leave and that she would be vaccinated when she returned to work. Also on 5 May 2022, the Applicant was invited to attend a meeting on 11 May to discuss why the Applicant’s employment should not be terminated based on her non-compliance with the Vaccination Policy. The Applicant was informed that if she did not attend the meeting, a decision would be made based on the information available. The Applicant declined to attend the meeting. [9] The Applicant received her second dose on 10 May 2021 and uploaded evidence of her vaccination status to Workday on the same day. By a letter dated 1 June 2022, the Applicant was notified of the decision that her employment was terminated effective immediately. On 5 [2023] FWC 899 3 June 2022, the Applicant lodged an internal appeal against the decision to terminate her employment and the appeal was dismissed on 22 June 2022. [10] In her Form F2 application and submissions, the Applicant contends that the dismissal was unfair because: • The Applicant had not experienced any prior disciplinary actions or engaged in any misconduct in her more than 15 years of service. • The Applicant had communicated with the Respondent her intention to be fully compliant with the Vaccination Policy by electing to be vaccinated with the Novavax vaccine, a protein-based vaccine, which became available in late February 2022. • The Applicant had conducted herself based on representations in a message in relation to her return to work. • Jetstar’s approach to the Applicant’s non-compliance with the Vaccination Policy was different from that in relation to Mr William Wilson, a pilot employed by Jetstar. • The Vaccination Policy did not accommodate the Fair Work Ombudsman Guidance which provides that employees on long service leave may be categorised as “tier 4 employees” who are not reasonably expected to report to the workplace while on leave. • The Applicant had endeavoured to comply with the Vaccination Policy “at every turn” and any breach of policy arose “due to miscommunication about its requirements”. • The Vaccination Policy does not deal with employees on long service leave thereby “creating confusion for the Applicant about what was required of her”. • The Applicant was on long service leave at the operative time when the Policy required her to be vaccinated and as such, there was “no operational requirement for vaccination” and any decision to terminate her employment based on vaccination status while she was on leave “must be unfair”. [11] In response, the Respondent contended that the Applicant’s dismissal was not unfair because the Applicant had failed to comply with the requirements of the Vaccination Policy without a reasonable excuse; as a corollary of a failure to comply with the policy, the Applicant had failed to follow a lawful and reasonable direction given to her by Jetstar; the premise of miscommunication and confusion advanced by the Applicant is a false one because the Applicant well knew that her long service leave did not exempt her from the Compliance Date and that she remained non-compliant; and by failing to comply with the Vaccination Policy and to follow a lawful and reasonable direction, the Applicant had also breached clauses 4.2(b), 5.2(b) and 5.4(f) of the Qantas Group’s Standard of Conduct Policy. Procedural History [12] The matter was allocated to me for determination. I decided that it was appropriate to hold a hearing in this matter, having regard to the views of the parties together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued on 15 August 2022 for the filing and service of outlines of submissions and witness statements that the parties intended to rely upon at the hearing. The Directions also specified that witness statements are designed to take the place of evidence-in-chief and permission must be sought if evidence in addition to that set out in a witness statement, is sought to be advanced at the hearing. [2023] FWC 899 4 [13] The Applicant filed an outline of submissions and a witness statement5 on 11 September 2022. In support of her position, the Applicant also provided witness statements from Mr William Wilson, 6 a Captain employed by Jetstar and Mr Matthew Carroll, a former employee of Jetstar and co-worker. Mr Carroll’s witness statement consisted of testimony in support of the Applicant’s character and work ethics and was not tendered into evidence as it did not relate to issues in dispute. On 14 October 2022, both the Applicant7 and Mr Wilson8 provided witness statements in reply to the material filed by the Respondent. [14] On 30 September 2022, the Respondent filed an outline of submissions. In support of its case, witness statements were also provided by the following persons: • Ms Elen Burt, Head of Industrial Relations, Group Policy and Planning for Qantas Airways Limited since 29 October 2018;9 • Dr Peter Prasad, Head of Occupational Health for Qantas Health since June 2021 and previously the National Manager Health Services, Qantas Medical, from August 2016;10 • Mr Matthew Franzi, Chief Operating Officer for Jetstar since 1 August 2022 and previously Executive Manager – Group Safety & Security for Qantas;11 and • Mr Paul O’Brien, Senior Manager Jetstar Airports, since July 2016.12 [15] In addition, the parties were directed to file written submissions addressing the matters in s. 596 of the Act in relation to whether permission should be granted for a party to be represented by a lawyer or paid agent. On 19 August 2022, both the Applicant and the Respondent filed submissions seeking permission to be legally represented. Having considered the parties’ submissions, I was satisfied that the matter involved some complexity, and it would assist the Commission to deal with the matter more efficiently if both parties were granted permission and that no issues of unfairness arose as both parties were represented by Counsel. [16] A hearing was initially listed for 24 and 25 October 2022 and the hearing dates were subsequently postponed to 18 and 21 November 2022, at the request of the Applicant’s legal representative. However, due to an illness suffered by the Applicant’s Counsel, a further request was made by the Applicant’s solicitors for the hearing to be postponed. A hearing was conducted in person on 4 December 2022. [17] At the hearing, the Applicant was represented by Mr. T O’Brien of Counsel instructed by Shine Lawyers, and the Respondent was represented by R Dalton KC and Mr M Minucci of Counsel, instructed by Ashurst. The Applicant’s Form F2 Application also indicates that it was prepared and lodged on behalf of the Applicant by Shine Lawyers. Ms Burt, Dr Prasad and Mr Franzi were not required for cross-examination and their evidence was tendered without objection. The Respondent did not require Mr Wilson for cross-examination and his statement was also tendered without objection. Mr Wilson’s statement was intended to support an argument of differential treatment, which was not ultimately pressed, and his witness statement was not relied on. An issue associated with the Applicant being advised that her red ASIC card was cancelled was also not pressed on the basis that it was accepted by the Applicant that this was a case of mistaken identity involving another employee named “Meagan” and the correspondence was sent to the Applicant in error, as outlined in the witness statement of Mr O’Brien. [2023] FWC 899 5 Initial Matters [18] Section 396 of the FW Act provides that the Commission must be satisfied of certain initial matters before the merits of the application can be considered. There is no dispute between the parties, and I am satisfied on the evidence that: 1. the Application was made within the period required in s.394(2) of the FW Act; 2. the Applicant is a person protected from unfair dismissal; 3. the Respondent was not a small business employer at the relevant time; and 4. the dismissal was not on the grounds of redundancy and was therefore not a case of genuine redundancy. Evidence Background to the Vaccination Policy [19] Detailed and comprehensive evidence about the rationale for, and medical and epidemiological basis for the Vaccination Policy, its background, and the manner in which it was introduced, was given by Dr Prasad, Ms Burt and Mr Franzi. None of the evidence given by these witnesses was challenged in cross-examination and was received without objection. It is not necessary to rehearse that evidence in detail. In summary, Dr Prasad is a registered medical practitioner and the Head of Occupational Health, Qantas Medical, employed by Qantas Airways Limited (Qantas). Qantas Medical sits within Qantas’ Health & Human Performance, Safety Health & Security Services team and provides support to the Qantas Group, including Jetstar. Dr Prasad has been in the role since around June 2021. Over the course of the COVID-19 Pandemic, Dr Prasad held additional responsibility of clinical lead for the Qantas Group COVID Support Team. His additional responsibilities over the course of the Pandemic included occupational contact 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. [20] Dr Prasad gave his evidence as a registered medical practitioner and a safety professional. His evidence was drawn from published medical evidence, Governmental publications, direct liaison with medical experts and Government Health Authorities, as well as his direct experience in dealing with the clinical, occupational health, and work health and safety aspects of the COVID-19 Pandemic as it pertained to the Qantas Group.13 The medical and epidemiological evidence given by Dr Prasad about COVID – 19 and the efficacy of vaccination as a control measure, is consistent with the views of a five Member full Bench in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd (Mt Arthur Coal)14 and has been accepted in other Decisions of Members of the Commission dealing with cases involving Qantas and its subsidiaries15. [21] At the time Dr Prasad made his statement, there were four COVID-19 vaccines available to adults in Australia that had been provisionally approved for use by the national regulator, the Therapeutic Goods Administration (TGA). The four vaccines were Comirnaty (Pfizer), Vaxzevria (AstraZeneca), Spikevax or Takeda (Moderna) and Nuvaxovid (Novavax). Nuvaxovid (Novavax) was approved for use on 20 January 2022 and requires two doses for [2023] FWC 899 6 completion of a primary course. Novavax was available from 14 February 2022. The recommended period between doses is 3 weeks. [22] Dr Prasad emphasised that the TGA only grants provisional approval for a vaccine after a complete assessment of all available data. Accordingly, the advice from the Australian Government at the relevant times (including the compliance date) was that vaccines approved by the TGA are safe for use and effective in preventing transmission and the consequences of the virus. Dr Prasad noted that as with all medicines, people can experience adverse effects from receiving a COVID-19 vaccine, however, serious adverse effects are very rare. An unvaccinated person is (and at all relevant times was) 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 and the transmissibility of the virus. [23] Dr Prasad said that 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. COVID-19 vaccines are safe for use and have an effect in preventing infection, symptomatic disease, hospitalisation and death. Vaccination against COVID-19 is the most effective and efficient control measure available to prevent the serious health consequences of the virus. Depending on the strain, a person who is vaccinated against COVID-19, in comparison to an unvaccinated person, is less likely to become infected with COVID-19 and less likely to transmit COVID-19 to others. For all known strains, a vaccinated person is substantially less likely to suffer serious health consequences, including death, than an unvaccinated person. [24] Ms Burt is the Head of Industrial Relations, Group Policy and Planning for Qantas Airways Limited and has been in the role since 29 October 2018. In her current role, Ms Burt is responsible for coordinating and implementing decisions in accordance with the Qantas Group Human Resources policy framework. Ms Burt was also involved in the development of the Qantas Group COVID-19 Vaccination Policy, together with a working group comprising Subject Matter Experts (SMEs) from across the business, including representatives from Medical, Safety, Human Resources (HR), Industrial Relations (IR), Legal and Government Affairs. [25] Mr Franzi is the Chief Operating Officer for Jetstar since 1 August 2022, reporting to the Chief Executive Officer of Jetstar Group. Mr Franzi described his current role as being responsible for the safe conduct of Jetstar’s Australian air transport operation. From November 2019 to March 2021, Mr Franzi held the role of Executive Safety Manager for Qantas and was involved in the development of the Qantas Group’s COVID-19 Vaccination Policy, working together with a group of Subject Matter Experts (SMEs) from across the business, including representatives from Qantas Medical, Human Resources, Industrial Relations, legal and government relations. Safety is described by Mr Franzi as “the number one priority” of the Qantas Group. [26] Ms Burt stated that the Qantas Group comprises a range of business operations and corporate entities, including Jetstar; the associated airlines business which includes regional airlines operating under the name QantasLink as well as other airlines, such as Network Aviation and National Jet Systems; the Qantas Ground Services business which provides [2023] FWC 899 7 ground services within the Qantas Group; and Qantas Freight which provides air freight services. Across these businesses, entities within the Qantas Group employ employees in a diverse range of roles and functions, including pilots; cabin crew; aircraft engineers; ground operations staff; customer service; store persons; and corporate or head office employees. [27] The Qantas Group operates across all States and Territories in Australia as well as in other countries. Mr Franzi noted that while there is a myriad of legislation that applies across different Australian States and Territories, the primary obligations are consistent. Under the Qantas Group Safety Management Framework, Jetstar and other persons within the Qantas Group conducting a business or undertaking, are required to take reasonable care of the health, safety and welfare of its workers, other staff, such as contractors and volunteers, and other persons at the workplace, such as customers and visitors. [28] Dr Prasad explained that since the beginning of the pandemic, aviation (including the Qantas Group’s operations) had been considered a particular vulnerability for the potential movement of COVID-19 from regions of higher prevalence to regions where COVID-19 was minimal to non-existent. Ms Burt said that the COVID-19 Pandemic has had a devastating impact on the Qantas Group’s business and operations. The imposition of various domestic and international travel restrictions resulted in the Qantas Group experiencing a significant, and at some stages, near total, reduction in air travel from mid-March 2020. The financial impact was said to have been significant. Since the beginning of the Pandemic, the Qantas Group has implemented a raft of COVID-19 safety measures to protect staff and customers from the health and safety risks posed by the Pandemic, with a view to building business resilience, mitigating the impact of the Pandemic on operations, and increasing customer confidence in flying. [29] Mr Franzi described a range of programs and policies including a permanently staffed COVID-19 Support Team, dedicated to helping employees of the Qantas Group manage the Pandemic by answering queries in relation to COVID-19 received from employees across the Qantas Group; providing wellbeing support and guidance to workers generally and those particularly impacted by isolation or quarantine requirements; providing support for vaccination bookings and priority access for Qantas Group employees at State and Territory vaccination hubs; and providing information of how to access leave in circumstances associated with COVID-19, such as a confirmed diagnosis of the virus or the inability to perform work due to restrictions associated with the contracting the virus. Dr Prasad explained that control measures implemented by the Qantas Group were designed to reduce the likelihood its workforce and customers becoming infected with the virus. The Qantas Group went to great lengths to implement these control measures because of the significant health consequences the virus posed to individuals who contracted it, as well as the significant operational consequences of COVID-19 in the workplace. Dr Prasad was also aware that up until 26 November 2021 (i.e. the pre-Omicron period), approximately 190 Qantas Group employees were known to have contracted COVID-19. Some of them suffered severe outcomes and, tragically, one died. [30] Mr Franzi stated that notwithstanding the implementation of safety or control measures against COVID-19, Qantas strongly believed that vaccination against COVID-19 remained critical for its people, customers, ongoing operations and for aviation more broadly and was identified as a reasonable additional control and as the best possible protection against the adverse impacts of COVID-19, including on operational continuity and the business. [2023] FWC 899 8 [31] During this period, when vaccination rates were very low, Dr Prasad stated that whenever a person may have been infectious in the workplace, rigorous procedures had to be enacted to ensure that workplace transmission was eliminated or minimised. Dr Prasad estimated that the handling of each positive workplace case required 20 hours of work spread across 10 responsible management employees. Mr Franzi gave evidence of a COVID-19 outbreak at the Melbourne Freight Terminal in August 2020 resulting in many employees, suppliers and contractors being classified as close and casual contacts, and ultimately resulting in the entire Freight Terminal being shut down. [32] Aside from the mitigating the adverse impacts of COVID-19, Ms Burt further explained that the nature of the operations across the Qantas Group, and the locations at which work is required to be performed including, for example, at an airport, inside an aircraft and inside freight terminals, meant that a large number of employees were or had been subject to government issued public health orders and directions regarding COVID-19 (Public Health Orders and Directions). Ms Burt said that the Public Health Orders and Directions have been subject to change frequently with little or no notice, including the introduction of additional public health measures, such as mandatory vaccination requirements. The lack of a uniform approach across the States and Territories and the patchwork approach to differing requirements, introduced complexity for the Qantas Group, given the nature of its operations and the way in which employees interacted across the network. [33] Consequently, the Qantas Group was not able to know whether any or all Public Health Orders and Directions would change at any point in the future to introduce new or different mandatory vaccination requirements. For that reason, employing entities across the Qantas Group, including Jetstar, were not able to know which of their employees might be required to comply with any of those requirements or when they might be required to comply with those requirements. Substantial sections of the workforces (such as flight and cabin crew), were required to comply with more than one Public Health Order or Direction, given the nature of their work. [34] Further, Ms Burt said that the introduction of the policy was to achieve several objectives, including providing employees of the Qantas Group and customers with consistency of protection against COVID-19, avoiding potentially serious health consequences as well as minimising other adverse impacts on operational continuity, disruption to the essential services provided by Qantas and the spread of COVID-19 in circumstances where employees of Qantas Group entities interacted with each other and large volumes of people on a regular basis, including with those who are vulnerable, and where the business involved constant travel across interstate and international borders. [35] In developing the Vaccination Policy, Ms Burt said that she worked with a working group of SMEs from across the Qantas Group. The SMEs provided input based on their area of expertise including, COVID-19 vaccinations and safety and health matters. Dr Prasad stated that Qantas Medical was involved as SMEs in the formulation of the Policy and associated employee guidance materials by researching current medical evidence and formulating recommendations based on the current evidence. Members of the working group also liaised with government departments and bodies, including the Australian Technical Advisory Group on Immunisation (ATAGI), on issues such as the approval of, and access to, various COVID- [2023] FWC 899 9 19 vaccines. Further, Ms Burt stated that the development of the policy was also influenced by the various forms of consultation the Qantas Group had engaged in with its workforce. [36] In this regard, extensive consultation was undertaken via a survey of some 20,000 employees, COVID – 19 Vaccination Consultation Survey (Consultation Survey), which was conducted on and from 28 July, and an Employee Q&A – Vaccines and Vaccine Survey (Vaccine Survey), outlining the intent of the survey as a means of consultation and how the information would be used.16 The Vaccine Survey which was in Q&A form, posed a question as to whether it was a requirement that all employees are vaccinated and a response that this was not currently a requirement and went on to set out directives and mandates then applicable or foreshadowed in Australia and New Zealand. The Vaccine Survey also prosed a question as to whether Qantas would make vaccination a requirement if the Government does not, and the response stated that: “It’s certainly something we will consider” and that it would make sense to ensure there is a high rate of vaccination among all our employees. The covering document sent with the Consultation Survey indicates that the Qantas Group is considering how the approved COVID – 19 vaccines might be used to improve health and safety at work. The Consultation Survey gave employees the opportunity to respond to a series of questions and they were able to submit free-text responses to 2 questions. Question 3 asked: “Do you believe the vaccine should be a requirement” and then set out various options in relation to the kinds of staff including an option “Should not be a requirement for any staff within the Qantas Group”. The free text questions were as follows: Question 5 of the Consultation Survey asked, “Do you have any other concerns about vaccination?” and Question 6 asked, “If the Qantas Group was to require COVID-19 vaccination in some or all work groups, do you have any health and safety issues you would like to raise about that requirement and how that requirement could be implemented?” [37] The common themes which came out of the free-text responses were escalated to the vaccination policy working group of which Mr Franzi was a member, for consideration and some of the themes led to amendments to a draft Policy that was published on 18 August 2021 (Proposed Policy) or resulted in additional information sessions being held on specific issues or themes that were raised as part of consultation including access to vaccines, reasonable additional timeframes for compliance where employees could not access approved vaccines, impact of vaccines on fertility, pregnancy and breastfeeding and recognition of vaccines in other countries. [38] Ms Burt’ evidence was that the Qantas Group received approximately 12,000 responses17 to the survey and the survey results were communicated to employees on 18 August 2021,18 noting the following: (a) 89 per cent of employees who took part in the survey indicated that they were already partially or fully vaccinated or had plans to be fully vaccinated; (b) 4 per cent said they were unwilling or unable to get the vaccine; and (c) around three quarters of those who responded to the survey believe that vaccination is a necessary step and would also feel concerned about working with individuals who are not vaccinated.19 [39] Around 3 out of 4 people who responded, said that it should be a requirement for all employees to be vaccinated and that they would be concerned if their fellow employees were [2023] FWC 899 10 not vaccinated.20 Ms Burt said that the figure increased to over 80% of respondents agreeing with this proposition in relation to staff in a customer facing role and staff working in international and domestic operations. A proposed Policy was then developed by the Qantas Group which was the subject of further consultation, including with health and safety representatives. [40] The Proposed Policy was published by the Qantas Group on 18 August 2021. A copy of the Proposed Policy was made available on the Jetstar intranet site. A covering email sent with the Proposed Policy stated in bold font, that the feedback received from Jetstar and Qantas team members had strengthened the Group’s view that making COVID – 19 vaccinations a requirement for all Qantas Group employees is the right decision. Essentially, the communication sent with the proposed policy makes clear the likelihood that it will be implemented. Following the release of the Proposed Policy, additional consultation was undertaken by the Qantas Group from 18 August 2021 until 17 September 2021, with employees, HSRs and unions about the Proposed Policy. On and from 18 August 2022, the Qantas Group maintained and made available via the Jetstar intranet site a set of “General COVID-19 Vaccinations Q&As, updated iteratively to address questions raised during consultation by employees and HSRs and discussions with unions. The updated General COVID-19 Vaccinations Q&As remains available to all employees on the Jetstar intranet site. [41] Mr Franzi noted that when employees were notified by email on 20 September 2021 that the Policy had been finalised, the email also confirmed how the feedback received from the consultation had influenced the final Policy and outlined changes to the Policy in this regard including paid time off to get vaccinated, additional leave for employees who were not fit for work after vaccination, and the opportunity to apply for temporary and ongoing exemptions, including temporary exemptions if an employee had limited access to vaccines because of where they lived.21 Before making the decision to implement the Policy, the Qantas Group also conducted a risk assessment addressing a number of hazards including COVID-19 in the community and vaccination against COVID-19, which was provided to health and safety representatives to assist them in the discussions about the Proposed Policy and capturing any additional risks relevant to their workgroups. [42] In around April 2020, the Qantas Group also implemented a COVID-19 Support Policy which set out the support measures available to employees to manage COVID-19. Amendments were made to the Support Policy in around June 2021 to provide access to paid time off work to attend vaccination appointments. The COVID-19 Support Policy was in place at the time of the Applicant’s dismissal. At all relevant times, Ms Burt explained that employees were generally able to attend two appointments (up to four hours on each occasion as required) under the COVID-19 Support Policy for the purpose of receiving the COVID-19 vaccine during their paid work hours, subject to operational requirements and with different requirements in place for work groups such as cabin crew and pilots. The Vaccination Policy [43] The Vaccination Policy was finalised and formally introduced by the Qantas Group on 20 September 2021 and employees of the Qantas Group were accordingly informed by email on that date. Specifically, Ms Burt noted that the email was also sent to “Jetstar Airways team members based in Australia”22 confirming the Policy had been finalised and was now in place. [2023] FWC 899 11 Ms Burt explained that in that email, employees were also directed to and provided with two documents that accompanied the Vaccination Policy, namely: (1) the Qantas Group COVID-19 Vaccination Policy – Detailed Employee Q&A (Detailed Q&A) which was updated on 14 October and 1 November 2021; and (2) the Exemptions Q&A – Qantas Group COVID-19 Vaccination Policy (Exemptions Q&A). [44] Section 1 of the Vaccination Policy sets out the scope of its application. Section 1.1 provides that the “COVID-19 Vaccination Policy (Policy) applies to Australia-based Employees of the Qantas Group, unless otherwise specified. All Qantas Group Business Units within Australia are required to comply with this Policy in its entirety”. “Employee” is defined to mean “a person who has a contract of employment with a Company in the Qantas Group.” “Entity/Business Unit” is defined to mean “a distinct business area within the Qantas Group (e.g. Qantas Airlines, Jetstar, etc)”. While the Vaccination Policy applies to Australian-based employees, it does not apply to independent contractors, suppliers or offshore employees of the Qantas Group as they were subject to a different policy or other vaccination requirements. Section 1.5 of the Policy provides as follows: “This Policy replaces and supersedes all prior agreements and understandings on this matter including (but not limited to) the Coronavirus (COVID – 19) Manager Guidelines, the COVID – 19 Support Policy and the COVID – 19 Vaccination Employee Q&A, unless expressly stated otherwise in the Policy.” [45] Section 3 is headed “Employee COVID-19 Vaccination Requirements”. Relevantly, Section 3.1 states that: “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.” [46] “Approved COVID-19 Vaccine” is defined to mean “a vaccine against COVID-19 that has been approved (including provisionally approved) by the Therapeutic Goods Administration or endorsed by the World Health Organisation. For the avoidance of doubt, fully vaccinated with an Approved COVID-19 Vaccine means that the complete course of vaccination has been undertaken. The number and timing of doses differs depending on the brand of COVID-19 vaccine used.” [47] Sections 3.3 and 3.4 detail the requirements and timeframes in relation to the Compliance Date by which employees were required to comply with the Vaccination Requirements in accordance with section 3.1. Relevantly, these sections state as follows: “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 [2023] FWC 899 12 supporting documentation) via the exemption process in place at the relevant time, which will be notified to Employees. 3.4 Requirement for vaccination and provision of Evidence of Vaccination Workgroup Compliance Date – Full Vaccination and Evidence of Vaccination Category A 1. Employees who hold or are required to hold a Red ASIC to perform their role; and 2. Frontline and operational Employees who are not Red ASIC holders but work and/or are based in any of the following*: • Airports (above and below wing) and Lounges; • Engineering; • Operational Centres (IOC, ROC and JOCC) • Ground Transportation; and • Freight Terminal Operations. *(2) excludes Employees who work in Airports, Engineering and Freight and are based at Head Office in Mascot or Collingwood. 15 November 2021 Category B All other employees 31 March 2022 [48] As noted above, employees on SLWOP, LWOP or parental leave at the Compliance Date or stood down, were required to comply with the vaccination requirements on a date other than the Compliance Date set out in section 3.4. Sections 3.5 and 3.6 provide that: “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. 3.6 Employees who are on Special Leave Without Pay (SLWOP), Leave Without Pay (LWOP) or paid or unpaid parental leave at the Compliance Date are required to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination by their first duty, work day or shift back at work after the completion of SLWOP/LWOP or parental leave.” (emphasis added) [49] Section 6.1 requires employees “to provide Evidence of Vaccination by completing the Workday form capturing their COVID-19 vaccination data and uploading approved vaccination certificates via the prescribed Workday Self-Service facility.” Section 4 deals with requests for exemption to vaccination, noting that exemptions will only be granted in “very limited (if any) circumstances”. Under section 4.2: “4.2 Employees who: (a) are unable to be vaccinated by the Compliance Date or at all due to a temporary or permanent Medical Contraindication to Vaccination; or [2023] FWC 899 13 (b) are seeking an exemption from the requirement under the Policy to be fully vaccinated with an Approved COVID-19 Vaccine by the Compliance Date or on an ongoing basis on other grounds (medical or non-medical grounds), are required to submit an application for a temporary or ongoing exemption (as applicable) not later than six (6) weeks prior to the Compliance Date applicable to the Employee. Employees will be required to submit the application (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.” [50] Section 4.3 states that exemption will be assessed on a case-by-case basis, having regard to “(a) the nature and requirements of the Employee’s role, including whether there is likely to be interaction with people with vulnerabilities in connection with their employment; (b) the risks of exposure (for the Employee and others) to COVID-19; and (c) the overall purpose and scope of the Policy.” [51] Section 6.2 and 6.3 sets out the way personal or sensitive information of the employees would be handled and stored by the Company in accordance with privacy legislation. Section 5.2 stipulates that under the Vaccination Policy, it is the responsibility of employees to be “fully vaccinated with an Approved COVID-19 Vaccine”, provide “Evidence of Vaccination on or before the Compliance Date”, submit “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 notify “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.” [52] Section 3.13 addresses the consequences of non-compliance with the Vaccination Policy and states as follows: “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.” Detailed Q&A [53] In addition to the Vaccination Policy, employees were provided with access, via a link in the email by which they were advised of the Policy, to a document headed Qantas Group COVID-19 Vaccination Policy – Detailed Employee Q&A (Q&A). The Q&A document was said “to assist Qantas Group Australia-based employees to understand the requirements of the Qantas Group COVID-19 Vaccination Policy (Policy), which was introduced on 20 September 2021”.23 Employees were encouraged “to read this Q&A document in full because it contains comprehensive information regarding the requirements of the Policy”.24 [2023] FWC 899 14 [54] Relevantly, Questions 14, 15 and 16 provided further information in relation to the Compliance Date and employees who were on various forms of leave on that date, including annual leave, long service leave or sick leave. These questions and answers are set out below: “14. I am currently stood down. If I am still stood down on the Compliance Date applicable to me, when will I need to comply with the Policy? If you are stood down on the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift. 15. I will be on SLWOP/LWOP or paid or unpaid parental leave on the Compliance Date that is applicable to me. When will I need to comply with the Policy? If you are on SLWOP/LWOP or paid or unpaid parental leave until after the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift back after completion of SLWOP/LWOP or parental leave. 16. If I am on another form of leave on my Compliance Date (e.g. annual leave, long service leave or sick leave), when do I have to comply? You will need to comply with the requirements under the Policy by the Compliance Date applicable to you (that is, either 15 November 2021 if you are in Category A or 31 March 2022 if you are in Category B), unless you have been granted an exemption by the Company under the Policy.” [55] If the preference of the employee is to be vaccinated with the Novavax vaccine, Question 20 states that: “20. 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 and AstraZeneca 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. If you have a demonstrated reason for being unable to be vaccinated with any of the currently approved and available vaccines, you will need to submit an exemption request, which will be considered on a case by case basis. However, we expect that it would be very rare that a person would be unable to get any of the currently approved and available vaccines. The TGA provisionally approved the Pfizer, Astra Zeneca and Moderna vaccines after a complete assessment of all the available data. This is the same process as any vaccine approved in this country. The TGA will only register and approve a COVID-19 vaccine if it is safe and effective. It’s important to note that an evaluation under the provisional pathway is still a full review. No part of the process has been rushed, and there was no emergency authorisation granted.” The Applicant’s Case [56] The Applicant commenced employment with the Respondent as a Customer Service Officer in 2007. In or around 2010, she was appointed to the position of Passenger Service Manager (PSM) and has worked as an Airport Duty Manager (ADM) or PSM until her [2023] FWC 899 15 termination on 1 June 2022. The Applicant stated that for most of her employment with the Respondent, she was based out of Cairns, however in or around February 2020, she was offered a secondment position at Brisbane Airport to fill an ADM role. In or around June 2020, the Respondent made several operation staff redundant, and in this process, the Applicant was successful in securing a permanent position as an ADM at Brisbane Airport. [57] In or around August 2021, the Applicant recalled completing a survey that Qantas put out to the staff in relation to the COVID-19 vaccination, requesting that staff confirm whether or not they were willing to be vaccinated against COVID-19. The Applicant said that on 31 August 2021, she applied for 6 months of long service leave (LSL) at half pay, commencing on 15 November 2021. The Applicant stated that she wanted to use this period of LSL as an opportunity to head back to Cairns for her daughter’s graduation and to relocate her family to Brisbane, as her family had still been based in Cairns while she worked in Brisbane. During her period of LSL, the Applicant did not return to Brisbane Airport, and was either on the Gold Coast or in Cairns. On 20 September 2021, the Applicant recalled that the Qantas Group sent “a generic email” to all Qantas Group staff implementing the Vaccination Policy. The Applicant understood that the Vaccination Policy required that staff with red ASIC must be fully vaccinated against COVID-19 by 15 November 2021, and head office staff must be fully vaccinated against COVID-19 by 31 March 2022. [58] On 19 October 2021, the Applicant received a Facebook Message from her direct Manager, Mr Craig Jenkins, Port Manager – Brisbane Airport Service, confirming that the Applicant’s LSL was approved and that she was not rostered to return to face-to-face work until after 1 May 2022 when her intended period of long service leave was scheduled to conclude. On 5 November 2021, prior to the commencement of her shift, the Applicant received a telephone call from Mr Jenkins. According to the Applicant, Mr Jenkins said words to the effect that “circumstances have changed in respect of your long service leave application and you will need to apply for special leave without pay or leave without pay. As you aren’t vaccinated the business will not be in a position to pay you your entitled long service leave”. The Applicant recounted that on 5 November 2021, she was concerned that her application for long service leave had been declined because of Mr Jenkins’ comment that she was required to “take SLWOP or LWOP”. The Applicant also stated that it was unclear to her what the relationship was between the Detailed Q&A and the Vaccination Policy. As a result, the Applicant sent a follow-up email to Mr Jenkins, resulting in the following exchange. At 4.43pm on 5 November 2021, the Applicant wrote: “Hey Craig, Just following up on the conversation we had this morning, which has caused me a huge amount of anxiety – I can’t seem to find anywhere in the policy that I am required to be vaccinated if I am on LSL. My understanding is that as long as when I return I am vaccinated – Would you have reference to where I can find it?” I am also most upset that all my staff have been taking away from me in Workday when my last shift isn’t until 09th Oct – is there reason for this?” [59] At 5:11pm, Mr Jenkins replied to the Applicant stating the following: “Hi Megan, I have just (sic) through the policy and it appears to be pretty clear on Paid and Unpaid Leave. [2023] FWC 899 16 COMPLIANCE DATES 14. I am currently stood down. If I am still stood down on the Compliance Date applicable to me, when will I need to comply with the Policy? If you are stood down on the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift. 15. I will be on the SLWOP/LWOP or paid unpaid parental leave on the Compliance Date that is applicable to me. When will I need to comply with the Policy? If you are on SLWOP/LWOP or paid or unpaid parental leave until after the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift back after competition of SLWOP/LWP or parental leave. 16. If I am on another form of leave on my Compliance Date (e.g. annual leave, long service leave or sick leave), when do I have to comply? You will need to comply with the requirements made under the Policy by the Compliance date applicable to you (that is, either 15 November 2021 if you are in Category A or 31 March 2022 if you are in Category B), unless you have been granted an exemption by the Company under the Policy. [emphasis in original] … Given the text about (sic) granted an exemption, I would suggest you at least submit an exemption request for consideration.” [60] At 5:27pm, the Applicant replied to Mr Jenkins stating that: “Is this written in the policy or just a Q&A below? – As I can’t find anywhere in the policy reference to annual leave, sick leave or LSL. 3.6 is the only reference to leave and that is SLWOP, LWOP or parental leave. I will follow your suggestion and submit a temporary exception on the grounds that I won’t be in the workplace for the next 6 months – I applied for my LSL on the 31 August and the policy was implemented on the 20th September.” [61] The Applicant did not apply for an exemption. The Applicant said she did not receive a response from Mr Jenkins to her email because Mr Jenkins had commenced annual leave. Between 6 November and 9 November 2021, the Applicant was unfit for work and provided a medical certificate. On 6 November 2021, the Applicant sent an email to Mr O’Brien, her next level Manager, enquiring about her long service leave. The Applicant and Mr O’Brien had the following exchange of emails between 6 and 9 November 2021. At 1:09pm on 6 November 2021, the Applicant wrote: “Good afternoon Paul, I am writing in regards to my LSL – I was informed by Craig yesterday by phone that as I wasn’t vaccinated that the business will not be in a position to pay me my entitled LSL that I applied for on the 31st August (INC-1633871) and approved on the 19th Oct at 14:03. It was suggested I apply for an exemption or SLWOP. My leave was approved, and I don’t believe I am being unfair or unreasonable in taking my entitled leave – to be advised 4 days prior to my last shift has caused me a huge amount of anxiety and stress. I have been very transparent and honest with the business in regard to my position on the vaccination. My last day in the workplace was the 09th November and the mandatory vaccination commencing the 15th November for Category A and Category B the 31 March 2022. [2023] FWC 899 17 My question is my leave was approved after the policy was implemented on the 20th September, so why now is it being declined? Where in the policy does it make reference to LSL, sick leave or annual leave? Why have I only been informed of this 4 days prior to my leave commencing? Why do I need to be vaccinated when I won’t be in the workplace for 6 months? What is the resolution moving forward in me taking my 6 months half pay LSL.” [62] At 6:14am on 9 November 2021, Mr O’Brien replied to the Applicant’s email and stated the following: “Hi Megan, Thank you for reaching out to me in Craig’s absence. From reading your email below it appears there may have been a misunderstanding. I can confirm that your request for Long Service Leave (LSL) from 10 November 2021 is approved and remains as such. My understanding of what Craig was communicating to you on Friday was that as a Red ASIC holder or other operational or frontline employee, you must comply with the COVID-19 Vaccination Policy (the Policy) by 15 November 2021, which requires you to be fully vaccinated with an Approved COVID-19 Vaccine and to upload a copy of your Evidence of Vaccination in Workday. Employees who are on periods of approved planned leave (i.e. Annual Leave or LSL) are still required to comply with Qantas Group and Jetstar Policies, including the COVID-19 Vaccination Policy, and as such you are required to comply with the Policy by the relevant compliance date” General For further information regarding the Qantas Group COVID-19 Vaccination Policy, please refer to the General COVID-19 Vaccinations Q&A and the Qantas Group COVID-19 Policy Detailed Q&A (available JEN). If you would like further information on COVID-19 and vaccinations generally, the dedicated COVID-19 and COVID-19 Vaccination pages on JEN contain an array of information that can assist employees. …” [63] At 8.50am on 9 November 2021, the Applicant replied to Mr O’Brien’s email as follows: “Morning Paul, Many thanks for your reply – just confirming, if I’m not fully vaccinated by the 15th November I won’t be paid my LSL?” [64] The Applicant said that Mr O’Brien’s email of 9 November 2021 failed to address her questions as to why she needed to be vaccinated when she was not required to be in the workplace for a period of 6 months while on long service leave. On 11 November 2021, a response was provided by Mr O’Brien to the Applicant’s email. Mr O’Brien stated that: “Hi Megan, I can confirm that while you are accessing your approved period of Long Service Leave (LSL), you will be paid regardless of your vaccination status while on that leave. [2023] FWC 899 18 I want to be completely transparent with you that should you not be compliant with the COVID-19 Vaccination Policy (the Policy) by the relevant compliance date (15 November 2021) you should expect to receive a call from Craig to advise you of the next steps in relation to your non-compliance and the process. During this call you will be given the option to elect to revert to your LSL and go through the relevant process or you can complete you period approved LSL as planed and when you are due to return to work, you will be directed to not attend work and go through the process. In short, the disciplinary process would go on hold while you are on LSL. Further details in relation to the process and your options will be communicated to you next week. Again, I want to confirm that your LSL will be paid while you are accessing it.” [65] On 15 November 2021, the Applicant commenced long service leave as planned. On 16 November 2021, the Applicant received numerous calls from Mr Jenkins which she declined to answer. Mr Jenkins then followed up with text messages and the Applicant had the following exchange with Mr Jenkins: “Craig Jenkins: Hi Megan, I just need to further discuss the Qantas Covid Vaccination Policy, your LSL and options. If you can call me back thanks. Craig. The Applicant: Hi Craig, I appreciate your call – if you would be kind enough to pop it all in an email. I have been very transparent and honest with the [sic] you and would prefer everything via email – as you can understand this is causing me anxiety. Craig Jenkins: My call is merely to ascertain the option Paul went through with you relating to your LSL approved to 01 May 22. I would hope to conclude the call in a few minutes. The Applicant: Paul never through an options [sic] with me Craig…I can send you all email correspondence from Paul. If you would be [sic] enough to send me the options via email. Craig Jenkins: I will respect your request and pass it back for advice. Being honest accepting the call is in your interests as I can go through the options and answer your questions rather than go back and forwards on emails. Craig Jenkins: Please send through Paul’s Comms [sic] and I will review. He was going to but has overlooked it as it’s quite busy right now. Craig Jenkins: Did you not have a phone conversation with Paul or Stephanie last week after I spoke with you. The Applicant: No, I haven’t had a phone conversation with anyone but you on Friday the 05th – I will send through what Paul has sent me. Craig Jenkins: Paul’s email is basically explaining your 2 options which answer most of your previous questions. Craig Jenkins: I’m just on a HQ call and will come back to you shortly. Craig Jenkins: The decision on LSL option changed after my last call with you. Craig Jenkins: I will respect your request for email, however if Paul’s previous email is not clear you should be calling me so I can explain how this works with your LSL. Regards Craig. The Applicant: Thanks Craig – Your email yesterday confirmed that I was on half pay LSL until the 01st of May and Paul’s email states from 01st May I’m not to return and go through the process. Craig Jenkins: That’s correct, I just need your acceptance that is your preference. [2023] FWC 899 19 The Applicant: What they [sic] I will be disciplined on my return? – the email doesn’t state what the relevant process is. Craig Jenkins: I’m only looking to establish if you are preferring option to return from leave now and go directly into the process or wait until the 04th of May 2022. Paul is assigned to receive your response and take over the process. The Applicant: My question is what’s the process? Craig Jenkins: It’s all in the letter I will send you. Just need to confirm your opting to stay on LSL and the process will be a show cause as your [sic] non-compliant. The Applicant: Thanks – I will wait for the letter.” [66] In response to the Mr Jenkins’ comment that Mr O’Brien had addressed most of her questions, the Applicant said that Mr O’Brien had not addressed her key questions as to why she was required to vaccinated when she was not required to be in the workplace for a period of 6 months while on long service leave. The Applicant stated that this did not make logical sense to her if the purpose of the Policy was to provide the Respondent’s employees and customers with protection against COVID-19 on Company premises and in other environments where face to face contact was required. The Applicant further stated that she did not understand the reason why the type of leave would be relevant. Her position was that if an employee was not at work on SLWOP, LWOP or parental leave, there was no logical difference from being away on long service leave. The Applicant said that it was also unhelpful to have changing information about her leave status, disciplinary risk and process, along with the failure to explain, and all at the last moment, when her long service leave had been approved weeks earlier. [67] The Applicant received an email on 17 November 2021 attaching a letter headed “Non- compliance with the Qantas Group COVID-19 Vaccination Policy” from Mr Jenkins. Relevantly, the Non-compliance letter stated: • As an employee of the Company, the Applicant was required to comply at all times with Qantas Group policies, procedures and manuals and with all lawful and reasonable directions issued to her; • Under the Vaccination Policy, the Applicant was required to be vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination via Workday by the compliance date applicable to her, being 15 November 2021; • The Policy constituted a lawful and reasonable direction. The Applicant was notified of the Policy, and provided with a link to it, on 20 September 2021 via email; • Notwithstanding those reminders, as at the date of the letter, there was no record of the Applicant providing Evidence of Vaccination via Workday as required by the Policy; • The Applicant would be considered to have not complied with a lawful and reasonable direction; • The Applicant’s failure to comply with the Policy also constitutes a serious breach of the Qantas Standards of Conduct Policy, including clause 4.2(b), which requires employees to be aware of and comply with all Qantas Group policies; clause 5.2(b), which requires employees to comply with all applicable Qantas Group policies, procedures, guidelines and rules as amended from time to time; and clause 5.4(f), which requires employees to follow reasonable and lawful directions. [2023] FWC 899 20 • the Company was considering disciplinary action against the Applicant which might be the termination of her employment; • the Applicant was requested to provide a written response as to why her employment should not be terminated, to Mr O’Brien by 5.00pm on 4 May 2022; • The Applicant was directed not to attend work at the conclusion of her period of LSL on 1 May 2022 until further notice from the Company. [68] The Applicant said that the Letter did not explain to her why she needed to be vaccinated when she was not required in the workplace during her 6 months of long service leave or why long service leave was treated differently to SLWOP, LWOP or parental leave. On or around 28 January 2022 the Applicant completed a rapid antigen test (RAT) which confirmed that she had contracted COVID-19. On 1 February 2022, the Applicant registered her positive COVID- 19 RAT result with Queensland Health. On 24 February 2022, following her bout of COVID- 19, the Applicant attended an appointment with her GP. The purpose of the appointment was to get a check-up and to discuss her options in relation to an exemption from the vaccination requirement under the Vaccination Policy. During this general check-up, the Applicant said that she was advised by her GP that because she had caught COVID-19, she was exempt from receiving a COVID-19 vaccine for a period of four months. Her GP then prepared an exemption form dated 24 February 2022, providing the Applicant with an exemption from receiving a COVID-19 vaccination until 1 June 2022.25 The Form has boxes the medical practitioner can tick to indicate the basis of the exemption. None of the boxes are ticked on the form tendered by the Applicant and the medical practitioner has instead hand-written: “Alternative criteria – positive RAT test on 1/2/22 – exempt for up to 4 months or until 1/6/22.” [69] On 29 March 2022, the Applicant received a Facebook message from Mr Jenkins as he was working through roster arrangements and exchanged messages with Mr Jenkins, as follows: “Craig Jenkins: Hi Megan, WFP have you returning on Monday 02 May after Taryn has your LSL down for 24 weeks. Is that matching your expectations? As Wondy leaves this Sunday so I’m working out coverage. The Applicant: Hey Craig, Hope your [sic] well. I have been given various dates – I will have to go through and calculate it – My show cause letter stipulates I have until the 04th May to reply and moving forward I have to wait until the business contacts me?? Further more [sic] my ASIC has been cancelled so until I [sic] have completed my checks my understanding is that I can’t return to the workplace without a valid ASIC. Craig Jenkins: Interesting, I doubt the ASIC is cancelled rather held at QF Security for reissue. I will allow for the first run in roster while those things are sorted out anyway. Are you likely to be vaccinated or with an exemption presented by the 04th? Obviously your choice on dealing with that side as I’m not involved just thinking if you aren’t (as a friend) could you try to retain good leaver status if possible. Obviously I want to see you back here as an ADM. The Applicant: I contacted QF and they have confirmed that my was ASIC was cancelled as I was terminated?? I will reply to my show cause by the 04th May. Craig Jenkins: I will contact QF security and see what they have.” [70] The Applicant explained that when Mr Jenkins referred to “the first run”, he was referring to the first week of the roster, being a period from around 30 April 2022 to 6 May 2022. The “second run” in the roster commenced on or around Monday 7 May 2022 and the Applicant’s first rostered day of work in the second run was 11 May 2022. Thus, the Applicant [2023] FWC 899 21 was of the view that when Mr Jenkins said in his text message that he would “allow for the first run in roster while those things are sorted out anyway”, she reasonably understood that to mean she was allowed until 10 May 2022 to be vaccinated, being the day before she was rostered to return to work in the second run on 11 May 2022. On 26 April 2022, the Applicant received a text message from a colleague, stating that “I spy you back on our roster…can’t wait to see you back here”. [71] The Applicant explained that while she had an Exemption from her GP, she was concerned that if she remained unvaccinated and without an exemption granted by Jetstar, she would not be allowed to return to work. As a result, she received her first dose of the Novavax vaccine on 19 April 2022. [72] On 4 May 2022 the Applicant provided a written response to the Non-compliance Letter. On 5 May 2022, Mr O’Brien sent an email to the Applicant inviting her to attend a meeting with him by video conference on 11 May 2022 for the purpose providing the Applicant with an opportunity to respond to the Letter verbally. Mr O’Brien also noted in his email that a written response had not been received from the Applicant. Upon receiving Mr O’Brien’s email, the Applicant realised that she had sent her response to the wrong email address and rectified her error by forwarding it to Mr O’Brien on 5 May 2022. That response was as follows: “Afternoon Paul, As per Covid-19 Vaccination Policy 2. Purpose 2.2 In addition to COVID-19 vaccination regulatory requirements for airline workers the policy aims to provide our employees with consistency of protection against COVID-19 in Company Premises and other environments required for work. I commenced my entitled long service leave on the 10th of November therefore was not in company premises or the working environment on the 15th November when the compliance date commenced. I will be vaccinated when I return to the workplace.”26 [73] On 10 May 2022, the Applicant received an email from Mr O’Brien with a Microsoft Teams link to the meeting scheduled for 11 May. Also on 10 May 2022, the Applicant received a second dose of the Novavax vaccine and thereafter, she replied to Mr O’Brien’s email declining the meeting invitation, requesting that Mr O’Brien send his decision to her by email, and stating that “My vaccination status has been uploaded in workday – this was something that I communicated and was very transparent about prior to commencing my LSL on 10th November 2021.” [74] In response, Mr O’Brien reiterated that the response meeting was scheduled for 11 May 2022 by Microsoft Teams and if the Applicant chose not to participate in the meeting, he would proceed to determine an outcome of the review of employment based on the available information. The Applicant stated that the reason she declined to meet with Mr O’Brien on 11 May was because she had been “consistent with requesting any communication from the business be put in writing rather than verbal to ensure [she] had a written record of all correspondence and communication” and “at the time [she] was feeling overwhelming pressure that [her] job was on the line and [her] response to the questions posed could have been [2023] FWC 899 22 detrimental as [her] career was being threatened”. The Applicant also said that she was in no state of mind to represent herself to the best of her ability as she was feeling an overwhelming sense of fear and anxiety. Further, the Applicant said the correspondence from the business stated that although it was the preference of the company that she attend the meeting, she “was not obligated to”. [75] On 13 May 2022, the Applicant had an exchange of text messages with another colleague who also referred to the fact that the Applicant would be returning to work in 7 days. The Applicant stated that based on the text messages from Mr Jenkins and two colleagues, she believed she was due to return to work to perform her ADM role. On 27 May 2022, Mr O’Brien emailed the Applicant informing her that he had reviewed the relevant information and would like to invite her to a meeting on 1 June 2022 to provide her with the outcome of the review. Relevantly, the email from Mr O’Brien noted that: “I have reviewed the relevant information regarding the review of your employment arising from your non-compliance with the Qantas Group COVID-19 Vaccination Policy. I would like to meet with you to provide you with the outcome of this review. The meeting will take place on Wednesday 1 June 2022 at 1:00pm over Teams. You are welcome to bring a support person and I acknowledge that a support person will be attending with you. I will have a Company (HR) representative in attendance. While it is the Company’s preference to meet with you to deliver the outcome. If the outcome meeting does not proceed as intended, the outcome will be sent directly to you via email.” [76] On 31 May 2022, the Applicant sent a letter to Mr O’Brien and Mr Mark Moss, People Manager for the Respondent, signed by Ms Andrea Tokaji on behalf of the Applicant and referring to the Applicant as Ms Tokaji’s client, in the following terms: “We note that the requirement to comply with the Qantas Group’s Policies are subject to my client’s rights, protected at law, including: • Section 94H of the Privacy Act 1998 (Cth); • Privacy Principle 3.2 in Schedule 1 of the Privacy Act 1998; • Section 4 and 6 of the Disability Discrimination Act 1992: • Section 95 of the Biosecurity Act 2015 (Cth); • Article 1 and 6 of the Nuremberg Code (It’l); and • Rights protected under work health safety laws and employment laws … In addition to the question of whether the internal Qantas Group COVID-19 Policy is lawful and reasonable, and compliant with my client’s rights at law, the treatment of my client by her employer and specifically her supervisor comes into question. My client has been discriminated against. We note that the internal COVID-19 Vaccination Policy only applies to Qantas Group staff while they are working within the company. We note that the Policy cannot apply to my client while she is on holiday, neither can an employer call an employee requesting compliance while they are on leave. … We seek clarification on this matter. Please advise. We note, that, at no time did my client refused to be vaccinated, nor did she express that she would not be following the Qantas Group COVID-19 Vaccination Policy. [2023] FWC 899 23 My client has been explicitly clear with her immediate supervisor, Craig Jenkins, and other Airport Duty Managers, both in person and in writing that she had every intention of being vaccinated. My client was vaccinated with the Novavax on the 19th of April 2022 at the Chempro Chemist, and again on the 3rd of May 2022 at the Ormeau Clinic at the end of her leave period, for personal reasons. There is therefore no valid, lawful or reasonable reason that the Qantas Group can terminate my client…”27 [77] On 1 June 2022, the Applicant attended a meeting with Mr O’Brien and Mr Moss. Ms Tokaji also participated by telephone as the Applicant’s support person. The Applicant recounted that Mr Moss and Mr O’Brien communicated to her that a decision had been reached by Mr O’Brien that her employment was terminated effective immediately. At 2:41pm on 1 June 2022, Mr O’Brien sent the Applicant an email enclosing an outcome letter confirming the termination of her employment. A copy of the Internal Appeal Procedure Policy was also enclosed. The Applicant said that the termination letter did not explain why she needed to be vaccinated when she was not required to be in the workplace during her six months of long service leave or why this absence was treated differently to SLWOP, LWOP or parental leave and did not address the entirety of the matters contained within the letter of 31 May 2022. [78] On 5 June 2022, the Applicant lodged an internal appeal against Mr O’Brien’s decision to terminate her employment. In support of her appeal, the Applicant: • reiterated that the requirement that she comply with the Qantas Group’s Policies was “subject to [her] rights, protected at law” and rehearsed the list of legislation and sources as set out in Ms Tokaji’s letter. • maintained the position that the Qantas Group’s internal policies were subject to the mentioned “Federal laws” as well as “human rights principles, including non- discrimination”; • stated that her understanding of Mr O’Brien’s letter of 17 November 2021 was that she would be stood down because of the direction that she was not to return to work until further notice and was never given a date to return to the workplace; • stated that she “took it upon herself” to ensure that she was fully vaccinated by 10 May 2022 and uploaded evidence of her vaccination to Workday; • referred to section 3.5 of the Policy which provides that employees who were stood down were allowed to comply with the Vaccination Policy upon their return to the workplace and calculated that her return-to-work date was 11 May 2022 in accordance with the roster arrangements made by Mr Jenkins; • stated that the email she received about the cancellation of her ASIC led her to believe that the outcome of terminating her employment had been pre-determined; and • asserted that the actions taken against her were unlawful and she had been discriminated against, based on the different Compliance Dates for Category A and Category B employees as well as the different forms of leave. [79] On 20 June 2022, the Applicant received the outcome of the internal appeal which confirmed the decision to terminate her employment. The Applicant stated that the dismissal caused a significant amount of stress and anxiety for which she had received psychological treatment. In addition, the Applicant said that the dismissal had a significant financial impact on her and her family as she had been unable to obtain full time work since the dismissal and [2023] FWC 899 24 was working as a casual at a supermarket. The Applicant stated that her efforts had been hampered by the fact that the roles she had applied for required her to declare whether she had previously been dismissed from employment. [80] The Applicant also stated that she had no intention of leaving her employment with the Respondent and had never received any warning about her performance or conduct over her 15-year career. The Applicant indicated that she would like to get her job back and continue to work for the Respondent. Further, the Applicant maintained that she said she has a great employment history with the Respondent and is confident that she could return and build up the previous good work she had put into the organisation. [81] In reply to Ms Burt’s evidence that employees of the Qantas Group were informed of the Vaccination Policy by email of 20 September 2021 and were given access to the Detailed Q&A document, the Applicant stated that she could not locate any information about LSL in the Policy document. The Applicant said that her understanding of the general practice in aviation is that employees are to be guided by policies and procedures first and foremost. As such, the Applicant said she “went by the absence of reference to long service leave in the Policy”, and not the Detailed Q&A. [82] In relation to the different compliance dates for employees on SLWOP, LWOP or parental leave under section 3.6 of the Policy, the Applicant said that she did not have an official return to work date. Based on her exchange of text messages with Mr Jenkins in March 2021 in relation to the rosters, she understood that 10 May 2022 was her Compliance Date, and took steps to receive her second dose of Novavax on 10 May 2022 to ensure she was fully vaccinated by the time she returned to work on 11 May 2022. The Applicant also said that she tried asking questions in relation to her long service leave entitlements and if she had known that she should have applied for SLWOP or LWOP, she would have done so to ensure her Compliance Date was 11 May 2022, based on Mr Jenkins’ advice. [83] In response to Mr O’Brien’s evidence, the Applicant said that: there is always a non- customer facing role on every shift, being the Team Leader who escalates to the Department Manager only when required; her understanding was that the Vaccination Policy “superseded” the information provided in the Detailed Q&A; and the Detailed Q&A was separate to, and was not, in and of itself, the Vaccination Policy. Further, having been informed by Mr Jenkins that she would have exhausted all her accrued leave on 1 May 2022, the Applicant said that this implied that she was on leave without pay from 1 May 2022 and that her Compliance Date was not until her scheduled return to work on 11 May 2022. In the alternative, the Applicant said that she had been stood down at the close of business on 1 May 2022 because she had exhausted her accrued leave and as a stood-down employee, her compliance date under the Policy would be the day of her return to work, being 11 May 2022. [84] In addition, the Applicant stated that conflicting statements about her long service leave not being approved, and suggestions from management that she had been stood down, or was on leave without pay, meant that her compliance date was unclear, as Jetstar was unclear about whether she was on approved long service leave, unpaid leave, or had been stood down, because the compliance dates vary in each situation. As a result of the confusion about the status of her long service leave and whether she had been stood down, the Applicant said she reasonably believed that her compliance date was not until her return to work on 11 May 2022. [2023] FWC 899 25 [85] In relation to Mr O’Brien’s evidence about the role of Airport Duty Managers, the Applicant stated Duty Managers were not trained, briefed nor provided any additional tools other than the generic information provided to the group in relation to the Vaccination Policy, which had never been implemented before. The Applicant noted that she did not view her actions as having any impact on work health and safety, as she was not in the workplace during the relevant time. In any event, the Applicant said that when she attempted to return to work on 11 May 2022 after being fully vaccinated, she was not allowed to be in the workplace until her dismissal on 1 June 2022. [86] The evidence of the Applicant under cross-examination can be summarised as follows. The Applicant agreed that having read an email from the CEO of Qantas dated 18 August 2021, she knew that if the then proposed Vaccination Policy was introduced, she would be required to be fully vaccinated by 15 November 2021, on the basis that she held a red ASIC card.28 The Applicant sought to qualify her evidence by asserting that the compliance date of 15 November 2021 was for “operational employees” and that she was on long service leave on that date. In response to the proposition that she was not on long service leave on 18 August 2021, the Applicant said that she had applied for long service leave, and later accepted that she did not apply for long service leave until 31 August 2021.29 The Applicant also agreed that she received an email on 20 September 2021 advising that the requirement set out in the proposed Vaccination Policy that red ASIC card holders be fully vaccinated by 15 November, had been implemented.30 [87] In response to the proposition that the email of 20 September contained embedded links to the Vaccination Policy and the Q&A document, the Applicant said that the Q&A document was not the Policy and that in 15 years working in aviation, she had never had to refer to a Q&A document and it was the first time such a document had been implemented in Qantas. The Applicant also said that she read the Policy a number of times. In response to a question as to whether she had read the Q&A document, the Applicant said that she had only done so briefly because the Policy confirmed that it superseded the Q&A and that this was why she was confused. 31 [88] In response to the proposition that there was nothing in the text of the email of 20 September 2021 to indicate anything other than as a front-line employee, the Applicant was required to be fully vaccinated by 15 November 2021, the Applicant said: “not according to the Policy”. The Applicant later agreed that the email raised a question in her mind about the application of the Policy to her circumstances.32 When taken to the terms of the Policy, the Applicant agreed that the first clause at 1.1 indicated that it applied to her, as an Australian- based employee of the Qantas Group, unless she could find some provision that stated that it did not apply.33 [89] In response to the proposition that the compliance dates set out in the table in 3.4 made it clear that the relevant date for her was 15 November 2021, the Applicant said that the purpose of the Policy was to keep the workplace safe, and she was not in the workplace.34 Later the Applicant agreed that the table indicated that she would need to find somewhere else in the Policy to specify otherwise, for employees taking long service leave.35 When referred to the parts of the Policy dealing with employees who were stood down, the Applicant maintained that she was stood down. The Applicant later agreed that there were specific provisions for [2023] FWC 899 26 employees on special leave without pay, leave without pay, paid or unpaid parental leave but no specific provisions excluding employees on any period of annual leave or long service leave.36 The Applicant accepted that her evidence is that when she read the Policy it was not clear how it applied to her particular circumstances, and that she had not spoken to a manager at any stage after 20 September, until management approached her in November 2021.37 [90] In response to the proposition that she understood that the Q&A document was to be read in conjunction with the Vaccination Policy to help inform her about how it would be applied, the Applicant maintained that this was not stated anywhere and that when she read the Q&A document which dealt with long service leave at 16 and confirmed that an employee on long service leave was required to comply with the compliance date of 15 November, she referred back to the Policy again.38 [91] The Applicant had the following exchange with Counsel: Sorry, I should be clear as well, at this time that you're looking at this material and you're working out what your position would be in relation to complying with the policy, it's true, isn't it, that you had applied for long service leave but you had not been notified of the approval of that long service leave? I had verbally but not confirmed. You make no reference to having received verbal approval of long service leave in your witness statement, do you? No, I don't believe I do. No. What I'm suggesting is that you don't know that you've got long service leave until you're notified of that fact by Mr Jenkins by an SMS or Facebook Messenger message on 19 October when he tells you that it's been approved; yes? Yes, that's correct. So, for a period of about a month from 20 September 2021 through to 19 October 2021, you don't take any steps to get your first dose of an approved COVID-19 vaccination, do you? No.39 [92] The Applicant was taken to Annexure PO-11 to Mr O’Brien’s witness statement, an email from Mr Jenkins to Mr O’Brien, setting out Mr Jenkins’ version of their telephone conversation on 5 November 2021, and was asked to confirm various aspects. The Applicant did not accept that Mr Jenkins confirmed that she was still required to be vaccinated by 15 November or that he informed her that long service leave would not get her any extension of the compliance date for vaccination. Further, the Applicant rejected the proposition that Mr Jenkins told her that if she wanted to extend her compliance date, she would be required to take leave without pay, or apply for and get a temporary exemption under the Policy.40 [93] The Applicant agreed that she sent a follow-up email at 4.43 pm on that date, stating that she was unclear about the relationship between the Vaccination Policy and the Q&A document and how the answer to question 16 bore upon the Policy.41 The Applicant rejected the proposition that her statement in that email that she could not find anywhere in the Policy that she was required to be vaccinated if she was on long service leave, indicated that this is what Mr Jenkins told her earlier that day and maintained that notwithstanding that she had asked that question, she did not have a conversation about this with Mr Jenkins.42 In relation to Mr Jenkins’ response sent at 5.11 pm on 5 November 2021, the Applicant had the following exchange with Counsel for the Respondent. He sets out there - and this is in native form - this is the original form that it was sent to you - do you recall him sending you this email where he highlighted in yellow question 16 and highlighted in red [2023] FWC 899 27 basically your only way out of question 16. Do you remember him sending you that email? Referring to the Q&A? Yes? Yes, not the policy. Yes, you remember - - -? It's written here, I've just - through the policy - it appears to be pretty clear on paid and unpaid leave on the policy. Yes? It wasn't the policy, it was the Q&A. All right. Your manager is telling you what the requirements of management are going to be in terms of their view as to how this policy requirement is going to be applied to you, to your specific circumstances of long service leave, which is crystal clear that you have to comply with the compliance date unless you have been granted an exemption by the company under the policy, and that's put to you in highlight and double highlight and yet you're still trying to suggest that you've got a free pass because question 16 is not embedded in the policy itself. Is that your evidence? Correct. It wasn't in the policy. It's clear Mr Jenkins' expectation, as your manager, is that the policy will be applied as is spelt out there in question 16 of the Q&A document, isn't it? But Mr Jenkins still has - - - Just answer my question directly, please. It's very clear that your one-up manager, the person you report to, that his expectation and requirement is that the policy and the compliance date for you is going to be applied in accordance with 16 of the Q&A document? Of the Q&A. Yes? Of the Q&A, not the policy. But you understand that your manager is going to apply the policy in that way? Whether you agree with it or not on this policy versus Q&A argument, it's clear your manager is going to apply the policy in the way that he spells out, highlights for you and double highlights for you in relation to the exemption? You accept that, surely? Okay. Couldn't be clearer, could it? Well, it wasn't to me. It was clear as crystal to you, you just didn't agree with it; correct? No, that's not correct. It was clear as crystal to you and you just didn't see why it should be applied in that way; correct?---No.43 [94] The Applicant agreed that she responded to Mr Jenkins asking whether this was written in the Policy or just the Q&A and told Mr Jenkins that she would submit a temporary exemption on the grounds that she would not be in the workplace for the next six months. The Applicant said that she did not make this application because she read through the Policy again and by that point could not have been fully vaccinated by 15 November.44 The Applicant agreed that she went to Mr O’Brien who is her two-up level Manager, but maintained that she did this because Mr Jenkins went on leave and not because she decided to go over Mr Jenkins’ head, and because she needed to confirm whether or not she would be paid. In response to the proposition that her two-up Manager Mr O’Brien also confirmed that her compliance date was 15 November 2021, the Applicant said that she understood this, but it was not in the Policy.45 [95] The Applicant was also taken to Mr O’Brien’s email to her of 11 November 2021, and asked to agree to the proposition that it was confirmed that her long service leave would be paid and that her compliance date of 15 November would not be shifted. After twice responding that this email confirmed she would be paid for her long service leave, the Applicant conceded that the email also confirmed that her compliance date remained 15 November 2021.46 Further the Applicant accepted that she understood that the email was advising her that a disciplinary [2023] FWC 899 28 process would commence if she was not compliant by 15 November and she could opt to cease her long service leave to participate in that process or to put it on hold until her long service leave concluded. After contending that there was “a lot of confusion about her return-to-work date” following the conclusion of her long service leave, the Applicant accepted that Mr O’Brien informed her on 15 November 2021, that her long service leave would conclude on 1 May 2022.47 [96] The Applicant accepted that having read the “Review of Employment” letter dated 16 November 2021, she understood that the position of her employer was that they regarded her as being non-compliant with the Vaccination Policy, considered this very serious and were considering disciplinary action up to and including termination of employment. The Applicant rejected the proposition that she understood it was in her interests to get vaccinated as soon as possible, seek leniency from the Respondent, and apologise for her non-compliance. The Applicant agreed that despite the Company telling her that her non-compliance was very serious, and her employment was at risk, she did not get her first COVID-19 vaccination until 19 April 2022.48 [97] In relation to the certificate received from her doctor on 24 February with respect to a four month exemption from vaccination, the Applicant said that she understood that notwithstanding that certificate, the Company’s position was that she could safely be vaccinated and should do so, after any infectious period had concluded, and that the certificate did not indicate that it would not be safe for her to be vaccinated until 1 June 2022.49 [98] In relation to Facebook messenger exchange with Mr Jenkins appended to her witness statement50 the Applicant agreed that Mr Jenkins was informing her that she was rostered on 2 May 2022, to work her first shift after long service leave. The Applicant also agreed that she responded, by referring to the show cause letter dated 16 November 2021 that stipulated that she had until 4 May to reply, and that she was informing Mr Jenkins that this would affect her availability for the roster.51 The Applicant agreed that Mr Jenkins’ response that he would allow for the first run of the roster, meant that he would make arrangements for her role to be filled for the shifts from 2 – 5 May and that her next block of shifts started on 11 May.52 The Applicant disputed that Mr Jenkins statement in that email, that if she was not vaccinated by 4 May she should try to retain “good leaver status” was him informing her that if she was not vaccinated by that date, he thought she would be dismissed and said that her interpretation was that she would be due back at work on 11 May which was why she had her second vaccination on 10 May.53 In response to the proposition that Mr Jenkins was not approving an extension of her compliance date and was instead recognising that the Applicant was not available because of a disciplinary process, the Applicant said that there was nothing in the Policy about long service leave.54 [99] The Applicant accepted that she did not take urgent steps to be vaccinated after the Facebook Messenger Exchange with Mr Jenkins on 29 March but maintained that she could have obtained an exemption because she had COVID in February, and was not required to be vaccinated, but wanted to be compliant to return to work, so took it upon herself to go and get vaccinated.55 The Applicant also agreed that she received Novavax on 19 April 2022 and the recommended period between doses is three weeks, so the earliest date she could receive her second dose was 10 May 2022 and stated that she would have been back at work on 11 May 2022.56 [2023] FWC 899 29 [100] The Applicant disputed that from the time she applied for long service leave on 31 August 2021, she did not want to get vaccinated and that she timed her long service leave to coincide with the compliance date, in part, to avoid the application of the Policy and to “fly under the radar hoping that the whole thing would blow over”.57 The Applicant also had the following exchange with Counsel for the Respondent: You accept, don't you, that by at least 11 November 2021, management had made crystal clear to you the requirement of the policy?---Once I'd commenced my long service leave on 11 November - I commenced it on the 10th. You will need to answer my question directly. I'm nearly finished. What I'm saying to you is that you accept, don't you, that by at least 11 November 2021, management had made it crystal clear to you the requirements of the policy as it applied to you, that is, your compliance date remained 15 November, notwithstanding you were going to take long service leave. Do you accept that? That was made clear to you by that stage?---Okay. Do you accept that?---Yes.58 The Respondent’s Case [101] Ms Burt gave detailed evidence in relation to the compliance dates in the Policy and the way various forms of leave were dealt with in respect of compliance dates. That evidence was not challenged by the Applicant. In relation to the two Compliance Dates for “Category A” and “Category B’ employees in section 3.4 of the Vaccination Policy, Ms Burt explained that the Compliance Dates were chosen based on (then) current Government advice regarding the vaccination rollout, availability of vaccines and also the priority access given to aviation workers in most States and Territories. In Ms Burt’s view, this was to ensure that employees in each category would have had a proper opportunity to become vaccinated by their compliance date. [102] In relation to sections 3.5 and 3.6 of the Policy, Ms Burt stated that the position of employees who were stood down, on SLWOP, LWOP or parental leave was distinct from other forms of approved leave, where employees remained subject to the relevant Compliance Date. This was confirmed in the Detailed Q&A issued with the Policy on 20 September 2021. In this respect, Ms Burt explained that there were several reasons for these different arrangements, including: • Personal (sick) / carer’s leave and annual leave are not necessarily fixed and can be taken in short periods of time with limited notice. Even in the case of long service leave, the maximum period taken is typically 3 months; • Employees on these forms of leave or absent on workers compensation can encounter a change in circumstances ending their period of absence from the workplace. In some cases, the employees are required to attend Qantas Group premises. For example, an employee on annual leave could be recalled to the workplace and an employee on personal (sick) leave or workers compensation could be required to attend Qantas Group premises in relation to their fitness for work; • The intention of personal (sick) leave and the workers compensation process is to allow for recuperation and rehabilitation and to facilitate the employee’s return to the [2023] FWC 899 30 workplace without the employee losing pay. The experience of the Qantas Group is that an employee's capacity for work is susceptible to change (e.g. no capacity, to partial capacity to full capacity) and this change can happen quickly. In those circumstances, employees on paid or unpaid personal (sick) leave or workers compensation were required to comply by their Compliance Date under the Policy so that they were ready to attend for work once fit to do so; • Any other differentiation in forms of leave would lead to a myriad of compliance dates under the Policy amongst employees, including within the same workgroup. This could in turn lead to unintended inconsistency in the application of the Policy and other operational uncertainties, including rostering and instability in known resources. From a group-wide perspective, fragmenting compliance dates would be operationally unworkable. • In around mid-November 2021, the Qantas Group expected high levels of customer demand and the return to normal operations. As a result, and subject to considering individual circumstances, any approvals for the taking of leave were likely to have been limited to ad hoc and shorter periods of leave, adding to the complexity of administration of the Policy; • It was important to ensure that the management of compliance with the Policy was not undermined by vaccine hesitancy, where vaccine hesitant employees could seek to avoid and defer compliance by accessing or taking leave from work. Further, if this had been allowed, the employing entity would not have known whether the employee needed to be replaced (because of their vaccination decision) until the end of their period of leave. Again, this would have been operationally unworkable; and • The exemptions process under the Policy was available in circumstances where the employee was unable or otherwise prevented from being vaccinated with one of the Approved COVID-19 Vaccines by the applicable Compliance Date. [103] Ms Burt was also of the view that sections 3.5 and 3.6 of the Vaccination Policy recognised that there were distinguishing features and contextual considerations for employees who were stood down, on SLWOP, LWOP and paid and unpaid parental leave. In particular, Mr Burt noted that: • SLWOP/LWOP are forms of leave within the discretion of management and could not be invoked at the election of an employee; • In the context of the operational impact of the pandemic, with large sections of the workforce stood down for extended periods due to no work being available, many employees were granted SLWOP/LWOP, typically for extended periods of 6-12 months or more. That significant cohort of people were likely to have had little or no contact with the Qantas Group during the roll out of the Policy; • Employees of Qantas Group entities who were stood down due to no useful work being available were generally ‘stood up’ in cohorts so that large portions of the workforce had the same return date, and generally therefore the same Compliance Date under the Policy; and • As with most of the SLWOP/LWOP, the periods of authorised leave for paid and unpaid parental leave were typically fixed for extended periods and was granted based on circumstances well in advance of and unconnected to the introduction of the Policy. Again, many of those on parental leave would have little or no workplace contact when the Policy was introduced. [2023] FWC 899 31 [104] In relation to the review of employment process that was instigated in circumstances of non-compliance with the Vaccination Policy by employees, Ms Burt said that the Qantas Group already had in place a centralised case management structure to support local management across the majority of Qantas Group entities, including Jetstar in conducting disciplinary processes in relation to non-compliance with policies and standards of conduct. The case management structure generally involves four points of contact. These are: • an employee's manager, who is responsible for all stages of the review of employment process and decision-making, including considering the particular circumstances of the individual employee; • Human Resources (and in some cases, Jetstar Employee Relations), who attend meetings with the employee's manager and the employee during the review of employment process. HR take minutes of meetings and attend to provide support and answer questions which might be asked by an employee, such as leave entitlements; • Case Management, who act as a central point of collation and provide guidance to managers throughout the review of employment process; and • Industrial Relations, who act as a point of escalation and provide advice. [105] Qantas used a centralised case management system in relation to non-compliance with the Vaccination Policy, to ensure consistency and fairness and to enable matters to be managed quickly and efficiently, given that the Policy applied to approximately 20,000 employees across multiple employing entities of the Qantas Group. [106] In circumstances where an employee of the Qantas Group was on annual leave or long service leave at their Compliance Date, Ms Burt said that a review of employment process would be commenced with the issuing of a non-compliance letter informing them that they had failed to comply with the requirements of the Policy and inviting them to provide a response as to why their employment should not be terminated. However, because the employee is on leave, Ms Burt said that two alternative options were offered in relation to when a response is to be provided and when participation in the review of employment process would be required: • Option 1: the employee could elect to cancel their period of leave and participate in the review of employment immediately, including providing a response to the review of employment letter (generally within three business days), during which time they would be directed to not attend work (on pay); or • Option 2: the employee could continue with their period of leave and provide their response to the review of employment letter upon their return from leave. In these circumstances, the review of employment letter would provide that the employee was directed to not attend work (on pay) at the conclusion of their leave and that they would have (generally) three business days from the end of their leave to provide their written response. The Qantas Group left this option available to employees because, in some circumstances, Qantas Group entities are restricted from unilaterally recalling an employee from their period of approved annual leave or long service leave and may be subject to the imposition of penalties for doing so, depending upon the terms of the applicable enterprise agreement and legislation. [2023] FWC 899 32 [107] As part of this process, Ms Burt said that an employee's manager would make a phone call to the relevant employee to explain the two options. Ms Burt said that a script of “talking points” was provided to managers setting out the two options. Ms Burt emphasised that Option 2 did not give the employee an extended period for compliance or a new Compliance Date and regardless of the option taken by the employee, there was non-compliance with the Policy and Option 2 simply gave the employee the option to continue with their leave and respond to the review of employment letter at the conclusion of that leave. [108] Mr O’Brien’s evidence was as follows. A copy of the Applicant’s most recent contract of employment for the position of Airport Duty Manager dated 25 May 2015 was annexed to his statement. Relevantly, clause 4.1 requires the Applicant to “follow and carry out, in relation to her duties, all lawful and reasonable instructions as are conveyed to her by any of the Company duly authorised personnel”. Clause 9.1 requires the Applicant to “familiarise herself with the various policies and procedures of the Company and where the policies place obligations on her, she must comply with them”. Clause 9.2 provides that a “failure to follow the Company’s policies and procedures may warrant disciplinary action, up to and including the termination of her employment”. [109] The Applicant had recently been trained in the Qantas Group Standards of Conduct Policy. In her role as an Airport Duty Manager based at the Domestic Terminal of Brisbane Airport, the Applicant was part of the Airport Duty Manager team and reported directly to Mr Craig Jenkins, Brisbane Airport Manager. Schedule 1, Item 4 of the Applicant’s most recent contract of employment states that the Applicant’s principal place of employment was at Cairns Airport. A change of her base location from Cairns Airport to Brisbane Airport was approved by Jetstar on 2 July 2020 which took effect on 25 June 2020 [110] As an Airport Duty Manager, the Applicant was responsible for the day-to-day oversight and management of Jetstar’s operational performance. Her role required her to manage the staffing and operations of Jetstar’s Brisbane Customer Service team, as well as general customer management and the escalation of customer issues. The Applicant was also responsible for monitoring her team members’ training and their compliance with health and safety measures, including their compliance with Jetstar’s workplace policies and procedures. The Applicant’s main responsibilities were set out in the position description included: • Fostering an enhanced awareness with all team members for occupational health and safety, aviation safety and security policies; • Managing Customer Service delivery to ensure it is in line with Jetstar’s brand values and act as a secondary escalation point where required for problem resolution and disruption management; and • Ensuring team member training is compliant and knowledge is retained of all associated overwing roles and related standard operating procedures; and • Recruiting, developing and the ongoing performance management of all relevant direct reports. [111] Mr O’Brien stated that Jetstar employs 4 Airport Duty Managers at Brisbane Airport who are rostered for 10.5-hour or 11-hour shifts on a roster system based on the pattern of 5 days on, 5 days off; 4 days on, 4 days off; and 4 days on, 5 days off. The roster continues to rotate around this pattern. Generally, a single Airport Duty Manager is rostered at any one time, [2023] FWC 899 33 and they supervise around 30 employees per shift. The Brisbane Airport Duty Manager role is described by Mr O’Brien as customer-facing and involving direct contact and interaction with different groups of people, including: passengers and other members of the public; vulnerable people including those with disabilities; international and domestic flight and cabin crew; other Jetstar team members and workers at the Brisbane airport not employed by Jetstar. [112] In relation to the period of the Applicant’s long service leave, Mr O’Brien tendered an email from the Respondent’s Ground Rostering Coordinator to Mr Jenkins, dated 6 September 2021, advising that the Applicant had requested a period of long service leave on half pay, from the period 12 November 2021 to 13 May 2022 and seeking Mr Jenkins’ approval59. Mr O’Brien also tendered a Facebook Messenger exchange between the Applicant and Mr Jenkins, advising that her long service leave had been approved60 and an email from Mr Jenkins to the Applicant dated 15 November 2021, confirming that the duration of that leave was 24 weeks from 15 November 2021 until 1 May 202261. [113] On 19 October 2021, Mr O’Brien approved the Applicant’s application for long service leave for the period of 12 November 2021 to 13 May 2022 at half-pay. On or around 5 November 2021, Mr O’Brien considered the Detailed Q&A to confirm whether Jetstar employees on periods of annual leave or long service leave were required to comply with the Policy on their compliance date, or on their next shift back at work. He also liaised with Mr Moss, People Manager, to confirm the Compliance Date for employees in those circumstances. Mr O’Brien concluded that the relevant Compliance Date for the Applicant was 15 November 2021. [114] Mr O’Brien also liaised with Mr Moss to confirm at what point the Review of employment process would commence for an employee who did not comply with the Policy but was on annual leave or long service leave at their Compliance Date. Mr Moss confirmed that there were two options in relation to the review of employment process in those circumstances. Having confirmed the Policy position, Mr O’Brien said that he instructed Mr Jenkins to reach out to the Applicant to ensure that she understood the requirements of the Policy in her circumstances. Mr O’Brien also instructed Mr Jenkins to explain to the Applicant that if she did not comply with the Policy by 15 November 2021, she had two options: (a) She could cancel her long service leave and respond to the review of employment process immediately upon non-compliance, at which point she would be directed to not attend work on pay; or (b) She could take her period of approved long service leave and respond to the review of employment letter on her return from long service leave, and at which point she would be directed to not attend work on pay. [115] On 5 November 2021, Mr O’Brien received an email from Mr Jenkins confirming that he had spoken to the Applicant and that: “…she is aware that the Covid compliance extension has been confirmed as non paid leave only. Given she is non-compliant she is going to complete an exemption form as the LSL period requested is at half pay (6 months) and a key reason for taking this was the medical problems her mother is experiencing who is her children’s primary carer in Cairns and this means Megan needs to be free from the roster for this period. My thoughts are that LWOP could be considered which would enable her to delay the compliance, but Megan cannot be without remuneration as she still needs to make loan payments and support her children. [2023] FWC 899 34 I didn’t go into detail, other than to say she is (sic) will be called if she remains non-compliant on the 15th, as LSL is paid leave and she understood that.”62 [116] Mr O’Brien confirmed the email exchanges tendered by the Applicant and maintained that he confirmed in his email of 9 November that the Applicant would be paid for her long service leave and her compliance date remained 15 November 2021. On the same day, the Applicant responded by asking whether she would be paid during her period of approved long service leave if she was not fully vaccinated by 15 November 2021 and on 11 November 2021, Mr O’Brien replied to the Applicant and confirmed that she would be paid for her approved period of LSL regardless of her vaccination status. Mr O’Brien further advised the Applicant that if she did not comply with the Policy by 15 November 2021, then Mr Jenkins would call to advise her of the two options in relation to the review of employment process. [117] Mr O’Brien noted that the Applicant’s last rostered shift before the commencement of her long service leave was 9 November 2021 as she took a period of paid sick leave from 7 to 9 November 2021, and the Applicant had rostered days off from 10 to 14 November 2021. The Applicant commenced her period of long service leave on 15 November 2021, and did not upload Evidence of Vaccination to Workday by her Compliance Date. Mr O’Brien said that Jetstar had decided that employees in its airports operations teams who did not comply with the Policy would be contacted by their immediate manager in the first instance, and then have their employment reviewed by a senior manager. [118] Mr O’Brien confirmed that the Applicant’s period of long service leave came to an end on 1 May 2022. As outlined in the Non-compliance Letter signed by Mr Jenkins on 17 November 2021, Mr O’Brien said that the Applicant was directed not to attend work at the end of her long service leave and was asked to provide a written response by 5:00pm on 4 May 2022, as to why her employment should not be terminated. Mr O’Brien received a written response from the Applicant on 5 May 2022 due to an error on the Applicant’s part in relation to Mr O’Brien’s email address. The substance of that response, which is set out in full above, was that the Applicant did not believe that the Vaccination Policy applied to her while on long service leave and would be vaccinated when she returned to work. [119] On 10 May 2022, Mr O’Brien provided the Applicant with a link to the Microsoft Teams meeting for 11 May 2022, but the Applicant declined the meeting invitation and requested that he send his decision to her via email. Mr O’Brien was also informed by the Applicant that her vaccination status had been uploaded to Workday. Mr O’Brien said that the meeting was intended to be an opportunity for the Applicant to provide a verbal response to the Non- compliance Letter, including any reasons as to why her employment should not be terminated. Mr O’Brien informed the Applicant that if she chose not to attend the meeting, he would proceed to determine an outcome on her employment based on the information available to him. Mr O’Brien was aware that, based on her record on Workday, the Applicant received her first dose of Novavax on 19 April 2022 and her second dose on 10 May 2022. [120] When the Applicant declined to attend the meeting, Mr O’Brien said his view was that the Applicant had no further information to provide. Mr O’Brien said he and Mr Moss nevertheless dialled into the Teams meeting on 11 May 2022, but the Applicant did not attend. After considering the Applicant’s written response, Mr O’Brien was satisfied that: the Applicant had been given the opportunity to provide a written response to the Non-compliance [2023] FWC 899 35 Letter and to attend a response meeting; she had received sufficient notice of the need to comply with the Policy by 15 November 2021; Jetstar had provided complete clarity to the Applicant on the interaction between the Policy and her LSL; and she wilfully did not comply with the Policy and instead insisted that she would be vaccinated when she returned. [121] On 26 May 2022, Mr O’Brien received an email from the Applicant requesting that he meet with her and her representative on 31 May 2022 or 1 June 2022 via Zoom. In the email, the Applicant communicated a request from her representative that “someone from Jetstar’s legal or HR team be included in the meeting”. At that point, Mr O’Brien stated that he had formed the view that he had all the relevant information which the Applicant wished for him to consider, and the Applicant knew that he would proceed to determine an outcome based on the available information if she declined to attend a response meeting. By an email dated 27 May 2022, Mr O’Brien invited the Applicant to attend a meeting via Microsoft Teams on 1 June 2022 for the purpose of providing her with the outcome of his review of her employment. Mr O’Brien informed the Applicant that she was welcome to bring a support person. In response, Mr O’Brien received an email from the Applicant attaching a letter signed by Ms Tokaji (the contents of which are set out above). Mr O’Brien did not provide a response to this letter. [122] In coming to a decision to terminate the Applicant’s employment, Mr O’Brien said he took into consideration the information provided by the Applicant, including her written response, and the fact that she did not comply with the Vaccination Policy by her Compliance Date. Mr O’Brien said that one matter to which he attached significance was the fact that the requirements of the Policy had been clearly communicated to the Applicant by him and Mr Jenkins and that it had been made clear to the Applicant that the Policy required her compliance by 15 November 2021 and not by the end of her long service leave, or some other dates of her choosing prior to her return to work. Mr O’Brien emphasised that the Applicant had been notified of this requirement on multiple occasions. [123] Further, Mr O’Brien said he considered that the Applicant’s correspondence and actions demonstrated a wilful non-compliance with the Policy because she disregarded Mr Jenkin’s email of 5 November 2021 and Mr O’Brien’s emails of 9 and 11 November 2021 all of which clearly communicated that she needed to comply by 15 November 2021 notwithstanding her LSL. Mr O’Brien attached importance to this because the Applicant had stated in her written response and repeated in further correspondence that “I will be vaccinated when I return to the workplace”. Mr O’Brien said he was not satisfied that the Applicant had ever intended to comply with the Policy by the Compliance Date of 15 November 2021. [124] Mr O’Brien further noted that he had regard to the fact that the Applicant was not fully vaccinated by the time her LSL concluded, despite her statements that she would be. In this respect, Mr O’Brien noted that the Applicant’s first rostered duty was on 2 May 2022 and the vaccination evidence uploaded to Workday showed that she was only fully vaccinated on 10 May 2022. Mr O’Brien also considered the fact that as an Airport Duty Manager, one of the Applicant’s responsibilities was to monitor employee compliance with internal policies and procedures, and the Applicant was therefore expected to be a role model for other employees in the business, including compliance with Qantas Group policies. [125] The conclusion reached by Mr O’Brien was that the Applicant had shown an unwillingness to comply with the Policy and was unable to provide a sufficient explanation as [2023] FWC 899 36 to why her employment should not be terminated. On 1 June 2022, Mr O’Brien, Mr Moss and the Applicant attended a meeting via Microsoft Teams for the purpose of delivering the outcome. Ms Tokaji also participated as a support person. Following the meeting, Mr O’Brien issued a letter to the Applicant terminating her employment. Mr O’Brien was informed that the Applicant was paid an amount of $38,123.14 (gross) by way of her final pay, which included gross amounts of: $7,573.43 in lieu of four weeks’ notice; $26,357.52 of accrued but untaken annual leave; and $2,956.18 of accrued but untaken long service leave. [126] In relation to the reinstatement to the position of Airport Duty Manager sought by the Applicant, Mr O’Brien did not consider reinstatement to be appropriate in all the circumstances. In Mr O’Brien’s view, the Applicant’s failure to meet the requirements of the Policy was of great concern to him as Senior Manager Jetstar Airports, because compliance with all workplace health and safety policies, including the Vaccination Policy, is of the utmost importance. Mr O’Brien further noted that a number of Airport Managers and Airport Duty Managers report to him at airports across the country and are part of the leadership team led by him. As a result, Mr O’Brien requires complete trust and confidence in them carrying out their leadership role, considering the fact that Airport Duty Manager is often the most senior leader in a given shift. [127] Mr O’Brien expressed the view that he had lost that trust and confidence in the Applicant because she took it upon herself to determine how and when to be fully vaccinated and to provide Jetstar with Evidence of Vaccination, despite the requirements of the Policy being clearly communicated to her on multiple occasions. It was also of great concern to Mr O’Brien the Applicant refused to engage with him and refused to attend meetings that he had invited her to, throughout his review of her employment. Since the termination of the Applicant’s employment, her Airport Duty Manager role had been permanently backfilled. [128] Under cross-examination, Mr O’Brien confirmed that he had always considered the Applicant to be a good worker and that other than the current matter he is not aware of any formal disciplinary record concerning the Applicant. Mr O’Brien agreed that the Q&A Document does not form part of the Vaccination Policy but added that it is there to address the myriad of different circumstances that a person may have in the way that they interact with the Policy, and as an additional reference given that the Policy is encompassing a workforce of approximately 20,000 people. Mr O’Brien also agreed that it is not possible to have a Policy that covers every situation and in response to the proposition that there are always gaps, said that there would always be certain circumstances in relation to how an individual interacts with the Policy or how it pertains to them particularly.63 [129] Mr O’Brien did not accept the proposition that there was no difference in the type of leave that an employee was on, in terms of risks associated with not being vaccinated. Mr O’Brien said that while the Policy addresses risk, it also addresses the variances in types of leave that employees take and that it would be unworkable to have bespoke compliance dates to take account of those varying forms of leave. In response to the proposition that the Policy was not written to take into account the individual needs of employees, Mr O’Brien said that the Policy needs to address the fact that it relates to 20,000 employees within the business.64 In response to the proposition that the Policy was confusing, Mr O’Brien accepted that at 3.6 the Policy calls out special leave without pay, leave without pay and paid or unpaid parental leave, but maintained that there was additional material sent with the Policy, such as the Q&As which explained how different types of leave interacted with the Policy.65 [2023] FWC 899 37 [130] Mr O’Brien disagreed with the proposition that he needed help working out how the Policy related to the Applicant and said that he liaised with Mr Moss, the Respondent’s People Manager, to confirm the Applicant’s compliance date because he noted that the Applicant was fast approaching the compliance date and he wanted to make critically sure that the date did pertain to the Applicant base on her long service leave dates and because it was in the Applicant’s interests that the need to comply was clear. In relation to his email exchange with Mr Jenkins on 5 November 202166 Mr O’Brien said that he understood that the Applicant had been informed that her compliance date would only be extended if she was on unpaid leave and the reference to “COVID compliance extension” is the date by which an employee would be required to be fully vaccinated and that long service leave being a paid period of leave, would not extend the compliance date. [131] In response to the proposition that if the Applicant had been on unpaid leave, her compliance date would not have been 15 November 2021, Mr O’Brien said that the Applicant had applied for long service leave, Mr Jenkins had informed him that the Applicant could not be without remuneration and leave without pay might not have been approved had the Applicant applied for such leave. Mr O’Brien disagreed with the proposition that the only impediment to the Applicant being on leave without pay was that she required remuneration for the period of her leave and said that at that time the Respondent was hopefully returning to a very strong peak and leave without pay requests were not necessarily being granted, because there was a lot of useful work in the organisation.67 In response to the proposition that backfilling of the Applicant’s position had been arranged to cover her long service leave and that this would have occurred regardless of whether she applied for leave without pay, Mr O’Brien said that he could not guarantee that leave without pay would have been approved, maintaining that backfilling a position while an employee is on leave without pay is different from backfilling a position while an employee is on a form of paid leave. 68 Mr O’Brien accepted that the type of leave an employee is on cannot affect the risk of COVID – 19 to customers if employees are not in the workplace.69 [132] Mr O’Brien agreed that when he emailed the Applicant on 9 November, he knew that non-compliance with the Policy would likely lead to dismissal and that the Applicant’s compliance date was 15 November. Mr O’Brien also agreed that he did not warn the Applicant in that document that her employment was going to be terminated. Further, Mr O’Brien agreed that at that time he knew about the Applicant’s mother being sick and that the Applicant’s mother was the primary carer for the Applicant’s children, based on the correspondence from Mr Jenkins and that there was some confusion about the Applicant’s return date from long service leave, while the Applicant was on leave.70 [133] Mr O’Brien accepted that if Mr Jenkins directed the Applicant to do something that was contrary to the Respondent’s Policy, the Applicant should follow the Policy. It was also agreed by Mr O’Brien that he did not speak to the Applicant by telephone or otherwise, between 6 and 15 November 2021 and that he did not do so because Mr Jenkins was dealing with the Applicant. Mr O’Brien maintained that when the Applicant raised questions with him, he responded to them in an appropriate timeframe given other matters he was attending to and did not accept a proposition to the contrary. Mr O’Brien also maintained that while it is his responsibility to assist the Applicant with her inquiries, the fact that the date was rapidly approaching when the inquiries were made, was not due to his inaction.71 [2023] FWC 899 38 [134] In response to the proposition that there was a misunderstanding associated with the Applicant’s long service leave, Mr O’Brien said that the Vaccination Policy was sent to the Applicant on 20 September 2021, inquiries made by the Applicant in relation to the intersection between her particular type of leave and the Policy had been made and had been cleared up on multiple occasions by Mr Jenkins and Mr O’Brien.72 In response to a question from me, Mr O’Brien said that his understanding was that the misunderstanding concerned whether the Applicant would be paid for her long service leave or not.73 [135] Mr O’Brien maintained that he considered the Applicant’s correspondence and actions demonstrated wilful non-compliance with the Policy, notwithstanding the Applicant’s misunderstanding on 9 November 2021 in relation to whether she was going to be paid for her long service leave or be on unpaid leave. In response to the proposition that telling someone on 11 November that they were required to be fully vaccinated by 15 November, made compliance impossible, Mr O’Brien said that the Applicant was aware of her compliance date on 20 September 2021. Further, Mr O’Brien said that wilful noncompliance was demonstrated by the gap between the advice of the compliance date and the first act of compliance, on 19 April 2022. Mr O’Brien also said that he was not sure whether he was aware that the Applicant had contracted COVID – 19 when he decided to dismiss her but maintained that he did have regard for information about the Applicant’s personal circumstances as set out in the email from Mr Jenkins dated 5 November 2021. Mr O’Brien accepted that he had not referred to those matters in his evidence.74 [136] In response to the proposition that the situation with the Applicant was only ever going to end with the termination of her employment, Mr O’Brien said that there may have been other outcomes based on evidence presented and the Applicant’s willingness to participate in a show cause response meeting to provide something to the contrary. Mr O’Brien also said that he made the decision based on the available facts.75 Mr O’Brien agreed that the Applicant was never told after 15 November that the sooner she got vaccinated, the better it would look for her and maintained that the delay between the compliance date of 15 November and 19 April 2022 when the Applicant received her first vaccination, demonstrated a lengthy period of wilful non-compliance. Mr O’Brien also agreed that the Applicant was never told that this would be a factor.76 Submissions The Applicant [137] The Applicant submitted that from the outset, this is not a case involving a refusal to be vaccinated, nor vaccine hesitancy. The case for the Applicant is said to be a simple one: the Respondent relied upon a breach of policy as the reason for dismissal, but the Applicant has endeavoured to comply with the relevant policy “at every turn”. The Applicant submitted that any breach of policy had arisen due to miscommunication about the requirements and in the circumstances, there can be no valid reason for dismissal. [138] It was submitted that the Applicant was on long service leave from 9 November 2021, that is, the Applicant was on leave from before 17 November 2021, being the date by which she was required to be vaccinated. The Vaccination Policy does not deal with employees on [2023] FWC 899 39 leave, thus creating confusion for the Applicant about what was required of her. The Applicant reasonably believed that she was required to be vaccinated prior to her return to work in May 2022, and complied with this requirement. [139] The Applicant further submitted that as she was on long service leave at the operative time when the Policy required her to be vaccinated, there was no operational requirement for vaccination. Accordingly, any decision to dismiss the Applicant based on vaccination status while on leave “must be unfair”.77 The Applicant stated that the Vaccination Policy, in essence, required her to be fully vaccinated after her final shift before taking six months of long service leave, and the Applicant was given eight days’ notice of this requirement. [140] The Applicant submitted that the confusion created by the changing position of the Respondent regarding the Applicant’s application for long service leave, and subsequent confusion regarding the requirement for the Applicant to be vaccinated, cannot be sheeted home to the Applicant, and the Respondent must accept responsibility in this respect. The Applicant reiterated that there cannot be a valid reason for dismissal, especially given the strict application of the Policy against the Applicant in circumstances where the Respondent has caused confusion about the requirements of the Policy. This was said to be confirmed when consideration is given to the different approach taken against the Applicant and William Wilson. The different approach is said to shine a light on the unreasonableness and unfairness of the Applicant’s termination. [141] Given her 15 years of service, it was submitted that the termination of her employment because of confusion about the Policy’s requirements is manifestly harsh and unfair.78 In those circumstances, it was said that reinstatement is the appropriate remedy. In oral closing submissions, the Mr O’Brien for the Applicant submitted that: …The applicant is not being wilfully non-compliant. She genuinely thought that her compliance date was her return from long service leave. She's explained why she had that view. She was wrong but she explained why she had that view. And with respect, it's not unreasonable for her to have formed that view, given the policy doesn't deal with it and she has been trained to read the policy. So I accept that that misunderstanding was of her own making up to 5 November. It doesn't change the fact that she wasn't deliberately being non-compliant. She just misunderstood. 79 [142] Later, in response to questions from me, and the proposition that the submission was at odds with his client’s position, given that the Applicant did not acknowledge any error, Mr O’Brien clarified that he was not saying that the Applicant was wrong about her view, but rather, that it would be open for the Commission to reach that conclusion. [143] It was also submitted that the Applicant was on approved leave from 12 November 2021 to 10 May 2022 and that whether the Applicant was vaccinated during that time, can have no relevance to the Respondent’s business. The Applicant’s position had been backfilled. The Applicant was not wilfully non-compliant with the Policy. The Policy contained no reference to paid long service leave and once it was brought to the Applicant’s attention that her compliance date was 15 November 2021, it was too late for her to be fully vaccinated. The Applicant’s actions after that date could have no bearing on the validity of the reason for her dismissal. In this regard, the Applicant’s responses to the show cause letter and the interview, speak to her conviction that what she was doing was in compliance with the Policy. [2023] FWC 899 40 [144] While the Commission may be hesitant to endorse an employee not following a lawful direction from the employer, the evidence establishes that the Applicant was trained to follow a Policy. As a result, the Applicant turned up at the show cause meeting and said that according to the Policy she was right. The Applicant does not rely on the representations made by her former representative at the show cause meeting. It was also submitted that notwithstanding that the Applicant’s written response to the show cause letter could have been more fulsome, it was open for the Applicant to have the view that she had complied with the Policy. This submission was said to be supported by the decision of Commissioner Riordan in Kalakas v the Commissioner for Public Employment80 where it was found that confusion around a date by which an employee was required to be vaccinated, rendered the dismissal harsh. The dismissal was also harsh in the context of the Applicant having 15 years of unblemished service and what amounts to a misunderstanding about the Policy. [145] It was accepted that up until 5 November 2021, the misunderstanding was of the Applicant’s own making. Thereafter, the correspondence received by the Applicant set out questions from the Q&A document, in circumstances where the Applicant was trained to follow the Policy, and secondly, by that point the Applicant could do nothing to bring herself into compliance. It was further submitted that the Applicant believed that 11 May 2021 was her compliance date, and the letter did not inform the Applicant that if she was vaccinated as soon as possible, that the Respondent would go easier on her in relation to the disciplinary process. [146] Reference was also made to the evidence of Mr O’Brien that there is no change in the risk arising from an unvaccinated employee when they are at home on leave. It was submitted that this is a case of an employer getting angry with an employee because she would not change her mind about what the Policy said. Reference was also made to the decision of Commissioner McKenna in Bradley John Dean v Regional Express Holdings Ltd81 in support of the proposition that where there is confusion about the requirements of a policy, reinstatement is the appropriate remedy. The Respondent [147] The Respondent submitted that the Commission has confirmed in various recent decisions dealing with applications for an unfair dismissal remedy against Qantas Group employers that the Vaccination Policy, including the direction to comply with the vaccination and evidence requirements, was lawful and reasonable,82 and there is no basis to depart from those decision in the present matter. [148] In the Respondent’s view, the Applicant does not dispute those fundamentals; rather, the Applicant’s case is that her non-compliance was caused by miscommunication and confusion about the application of the Policy to her circumstances of being absent from work on long service leave between 15 November 2021 and 1 May 2022. In this respect, the Respondent submitted that there was no reasonable excuse for the Applicant’s non-compliance with the Policy; the premise of miscommunication and confusion is a false one; the Applicant well knew that her long service leave did not exempt her from the Compliance Date relevant to her and that she remained non-compliant; the Applicant had formed her own view that she should not and would not be vaccinated until the end of her long service leave,. The Respondent also submitted that the Applicant effectively decided to stare down her employer on the compliance issue. As a result, the Respondent contends that it was not harsh, unjust, or [2023] FWC 899 41 unreasonable for Jetstar to insist on compliance by the Applicant’s Compliance Date, or to regard the Applicant as non-compliant from mid-November 2021 and dismiss the Applicant for that non-compliance. [149] Faced with the realities of the COVID-19 pandemic, the Respondent submitted that vaccination was and is the only practicable control available that ameliorates the consequences of infection. To that end, as the Policy made clear, the Qantas Group strongly believed that vaccination against COVID-19 was critical for its people, customers, ongoing operations and for aviation more broadly. A salient feature of the Vaccination Policy included that sections 3.5 and 3.6 set out discrete provisions for the compliance date for employees who were stood down, on Special Leave Without Pay (SLWOP), Leave Without Pay (LWOP) or paid or unpaid parental leave. Specifically, employees absent from work in those circumstances as at their Compliance Date were required to comply with the Policy by their first duty, workday or shift back at work after the completion of their period of absence from the workplace. The rationale for these provisions is explained in the Ms Burt’s evidence. All other employees were required to comply with the relevant Compliance Date, unless they had been given an exemption through the exemption process. [150] The Respondent also submitted that the Qantas Group consulted extensively with employees and other stakeholders regarding the Policy before it was finalised and before the Direction was issued. In this respect, the Respondent referred to the decision of the Commission in Stuart Tween v Qantas Airways Limited83 (Tween) which confirmed that the Qantas Group complied with its consultation obligations under relevant work health and safety legislation and any consultation obligations under the applicable enterprise agreement. The Respondent contends that the evidence in the present case is at least to the same effect. [151] In the present matter, it was noted by the Respondent that the Applicant was employed as an Airport Duty Manager at the Domestic Terminal, Brisbane Airport, with responsibilities for the day-to-day oversight and management of Jetstar’s operational performance, the staffing and operations of Jetstar’s Brisbane Customer Service team, as well as general customer management and escalating customer issues. The Respondent submitted that the Applicant held a Red ASIC as part of her role, and it was clear under the terms of the Policy that she was a ‘Category A’ employee and required to comply with the Policy by 15 November 2021. The Respondent further noted that on 1 May 2022, when the Applicant’s long service leave came to an end, she was not fully vaccinated at that time. [152] The dismissal was said to be procedurally fair, and the Respondent scheduled a meeting with the Applicant for 11 May 2022 to give her an opportunity to provide a verbal response to the Review of Employment Letter, but the Applicant declined to attend. On 1 June 2022, Jetstar dismissed the Applicant for her non-compliance with the Policy. On termination, the Applicant received $7,573.43 payment in lieu of four weeks’ notice, together with the balance of her accrued but unused annual leave and long service leave. [153] In the consideration of harshness of the dismissal as required in s. 387 of the Act, the Respondent submitted that the Full Bench of the Commission had on numerous occasions confirmed in unfair dismissal cases that a failure or refusal to comply with a lawful and reasonable direction is misconduct and constitutes a valid reason for dismissal.84 In the present matter, the Respondent stated that the Commission can and should be satisfied that the [2023] FWC 899 42 Vaccination Policy and the Direction were lawful and reasonable and that the Applicant’s failure to comply with each of them was a valid reason for dismissal. [154] Further, the Respondent submitted that directing compliance with the Policy is within the scope of the employment contract between Jetstar and the Applicant,85 and there is no law that renders the Direction unlawful. It was submitted that the Direction was lawful and the Applicant did not cavil with this. It was also submitted that the Policy and the Direction to comply with it, were at all relevant times reasonable as established in other cases concerning the same Policy. The Applicant did not cavil with any of the bases upon which the Policy and direction to comply with it were found to be reasonable. In the Respondent’s view, the issue in dispute with respect to s 387(a) of the Act was whether the Applicant’s non-compliance with the Policy and the Direction constituted a valid reason for dismissal based on misconduct as distinct from having a reasonable excuse for non-compliance. [155] The Respondent submitted that there was no reasonable excuse for the Applicant’s failure to comply with the Policy and the direction by the Applicant’s Compliance Date. Contrary to the Applicant’s assertions, there was no “miscommunication” or “confusion” around the applicability of the 15 November 2021 Compliance Date to the Applicant’s circumstances, regardless of her long service leave. In particular, the Respondent stated that: • The terms of the Policy were clear. Section 3.1 of the Policy required employees to be fully vaccinated, and to provide Evidence of Vaccination, by the compliance dates set out in section 3.4. The 15 November 2021 Compliance Date for ‘Category A’ employees was clearly applicable to the Applicant. • There were discrete provisions for the compliance date for employees who were stood down, on SLWOP, LWOP or paid or unpaid parental leave (sections 3.5 and 3.6). There was no such provision in the Policy for employees on other forms of leave, including long service leave. • The Applicant was on notice of the Policy since 20 September 2021 when it was promulgated to all employees. An email had been sent to employees’ work email addresses (including the Applicant’s) with a link to the Policy, and with links to the Detailed Q&A and the Exemptions Q&A. The Policy and Q&A material was also readily available on Qantas Group intranet sites, including JEN. • Lest there be any scope for confusion about the applicability of the Compliance Date to employees on long service leave, it was made very clear by the answer to Question 16 of the Detailed Q&A. Mr Jenkins specifically brought this to the Applicant’s attention in his email to her on 5 November 2021, in which he set out the above extract. • The Applicant's Compliance Date was the subject of specific reminders and reinforcement by her managers. On 9 and 11 November 2021, in the correspondence from Mr O’Brien, the Senior Manager Ground Operations, the Applicant chose to continue with her planned long service leave knowing that her failure to comply with the Policy by 15 November 2021 would trigger the review of employment process to which she could respond upon her return from that leave. Given that correspondence, by 11 November 2021 at the latest, the Applicant could have had no doubts that she would be non-compliant with the Policy, that a disciplinary process would follow and that she exposed herself to a serious risk of dismissal by further delaying vaccination. [2023] FWC 899 43 [156] It was stated by the Respondent that the failure to comply with the requirements of the Policy by 15 November 2021 was a serious matter, and contrary to assertion by the Applicant, she took no steps to comply with the Policy prior to the Compliance Date. Moreover, the Applicant did not take any steps to get vaccinated between 15 November 2021 and 18 April 2021 and did not upload any Evidence of Vaccination to Workday until 10 May 2022. In addition, even if, as stated by the Applicant in her evidence, the Applicant contracted COVID- 19 and registered a positive RAT on 1 February 2022, the Respondent questioned as to why the Applicant proffered no explanation at all for not being fully vaccinated in the period between 11 November 2021 and 1 February 2022. [157] As to a submission by the Applicant that the dismissal was unfair in circumstances where there was no “operational requirement for vaccination” while she was on long service leave, the Respondent describes this submission as reflective of the approach taken by the Applicant when in November 2021 management made it clear to her that she would be non- compliant with the Policy. In this respect, the Respondent submitted that: the Applicant knew that the Compliance Date of 15 November 2021 applied to her regardless of her taking long service leave; she also knew that Jetstar required her to comply by that date and was not going to give her some special dispensation outside the scope of the Policy; despite this, the Applicant decided not to take any immediate steps to become vaccinated and instead take her own time in complying. It was the Respondent’s submission that the Applicant’s personal view as to whether there was an operational need to be vaccinated could not be an acceptable excuse for her non-compliance because: • The terms of the Policy were clear, and she deliberately disobeyed them. It is not for individual employees to pick and choose whether they will comply with a lawful and reasonable direction or the date by which they will do so. This Policy was applied across the Qantas Group and had to be managed fairly and effectively for approximately 20,000 employees; • In that context, there were good reasons for the Compliance Date being applied uniformly and for the limited circumstances of stand down, SLWOP, LWOP and paid or unpaid parental leave as outlined in Ms Burt’s evidence. • As observed by Deputy President Easton in Tween, “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.”86 [158] In addition, the Respondent submitted that it is unclear from the Applicant’s submissions what, if anything, she sought to make of the Facebook Messenger exchange between herself and Mr Jenkins on 29 March 2022. In this regard, the Respondent submitted that statement by the Applicant that she “reasonably understood” that Mr Jenkins was allowing her until 10 May 2022 to be vaccinated, could not be accepted, because Mr Jenkins’ communications indicated he was not responsible for the review of employment process and merely offered to clear the Applicant from the “first run of the roster” pending the review of employment process. To the contrary, the Respondent stated that Mr Jenkins’ comment that the Applicant could “try to retain good leaver status” in the event that she was not vaccinated by 4 [2023] FWC 899 44 May 2022, revealed his expectation that the Applicant could be dismissed if she was not fully vaccinated. [159] The Respondent further submitted that the Applicant’s reliance on the decision of Ming- Lan Chiu v Liebherr-Australia Pty Ltd87 in support of a proposition that there was no operational requirement for vaccination because the Applicant was on long service leave at the relevant time, was misplaced. The Respondent contended that Libherr-Australia is distinguishable because in that case, the employee was dismissed for purportedly failing to comply with the Western Australian State Government’s public health orders requiring vaccination against COVID-19.88 However, at final hearing, the employer accepted that those public health orders did not in fact prevent the Applicant from attending her usual place of work, and as a consequence conceded that there was no valid reason for the employee’s dismissal.89 In this case, the Applicant, with full knowledge of the requirements of the Policy, chose not to comply with its terms by the Applicant’s Compliance Date. [160] As to procedural fairness considerations, the Respondent stated that it is uncontroversial that the Applicant was notified of the reason for dismissal (s 387(b)), allowed to have a support person present at each meeting she attended (s 387(d)), and there was no “procedural unfairness” in the context of ss 387(e) to (g). That leaves ss 387(c) and 387(h). [161] In relation to the criterion in s 387(c) of the Act, the Applicant did not press her assertions about the advice that her ASIC card had been cancelled and accepted that the correspondence sent to her in this regard was an error and related to another employee. Accordingly, the Commission can be satisfied that Jetstar gave the Applicant the opportunity to respond to the reasons for her dismissal during the review of employment process in May 2022. [162] In relation to s 387(h) of the Act, the Respondent noted the following arguments raised by the Applicant, although the Respondent said that they are by no means clear: (1) she has “endeavoured to comply with [the Policy] at every turn”; (2) the Policy was unclear in its terms with respect to employees absent on long service leave; and (3) the Applicant’s length of service renders her dismissal unfair. The Respondent rejected the first two of these arguments contending that they lack substance for reasons already canvassed above. [163] As to the third argument, the Respondent said that the Applicant’s length of service does not operate to render an otherwise fair dismissal, “harsh”. The termination of the Applicant’s employment is unfortunate. However, any consequential adverse personal impact on her is a direct result of her decision not to comply with the Policy and the Direction. In this respect, the Respondent referred to the observations of Deputy President Easton in Tween as follows: “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.90 … 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 [2023] FWC 899 45 Qantas’ business, the measures taken by Qantas to return to normal operations, and the objectively and medically sound rationale that underpins the Vaccination Policy.91” [164] Another relevant factor was said to be that throughout the review of employment process and including the date of dismissal, the Queensland Department of Health public health order92 was still in force mandating full vaccination against COVID-19 at “high risk” workplaces which was defined to include the indoor precinct of Brisbane Airport at which the Applicant worked. In those circumstances, the Respondent submitted that it was not unreasonable for Jetstar to regard the Applicant’s non-compliance with the Policy and Direction as a serious matter, made more serious by her ongoing failure to be vaccinated until 10 May 2022. [165] In relation to the remedy of reinstatement sought by the Applicant, the Respondent submitted that reinstatement would be inappropriate because the Applicant’s conduct involved an unwillingness to comply with an important policy. This was a matter Mr O'Brien took into consideration when deciding to terminate the Applicant's employment, including in the context of her role with Jetstar. In addition, Mr O’Brien’s evidence made it clear that the Applicant’s non-compliance with the Policy and the manner in which she refused to engage with Mr O’Brien or to attend a meeting with Mr O’Brien during the review of employment process was a matter of great concern to Mr O’Brien, particularly in light of the fact that the Applicant was in a leadership position. [166] In oral submissions at the hearing, the Respondent characterised the argument in relation to whether there was a valid reason for the dismissal, as confined to failure to comply with the direction. The Respondent submitted that there was no dispute in the present case, that the Vaccination Policy, including the vaccination and evidence requirements and the compliance dates attaching to those requirements, constituted a lawful and reasonable direction. In this regard, the Respondent submitted that none of the evidence it advanced in support of the contention that the direction was lawful and reasonable had been challenged by the Applicant. Accordingly, the Commission as presently constituted should accept the analysis of Deputy President Easton in in Tween, which was based on substantially the same evidence as was advanced in the present case, to the effect that a direction to comply with the requirements of the Vaccination Policy was lawful and reasonable. [167] The Commission should also accept that the direction was lawful and reasonable in all of its parts, comprising requirements to be vaccinated with an approved COVID – 19 vaccine; to provide proof of vaccination by uploading it in Workday; and the compliance date in the Applicant’s case, of 15 November 2021. The Respondent also submitted that the effect of the concession made by the Applicant and of the finding it was asking the Commission to make consistent with the material and the decision in Tween, is the reasonableness of the Policy setting in relation to its application to employees on paid leave, including long service leave, to the effect that it does not extend the compliance date for employees taking such leave. The rationale for the distinction between employees on annual leave and long service leave on the one hand, and employees stood down or on approved periods of leave without pay, was explained by Ms Burt who was not called for cross-examination. That evidence went to how the Vaccination Policy might be effectively managed given that it has to apply to 20,000 employees across the Group. [168] The Applicant does not challenge the reasonableness of the Policy or that she did not comply with it. Rather, the Applicant contends that she had a reasonable excuse for non- [2023] FWC 899 46 compliance based on alleged confusion as to the terms of the policy, vis-à-vis the Q&A Document, and secondly, alleged miscommunication by management as to the Policy requirements applicable to her and the confusion that created in her mind. While accepting a proposition I put to Counsel during closing submissions, that the Policy document could have been clearer, it was contended that the Policy was clear enough that the only categories of employees given relaxation on their compliance dates were the ones referred to in 3.5 and 3.6, and there is no reference to employees on long service leave. The Applicant’s question about the application of the Policy in her circumstances, was answered in a way that was crystal clear, and her argument that you ignore the Q&A document that is issued and promulgated to employees at the same time as the Policy, is absurd. [169] It was submitted that the Applicant was not confused by the Policy from 20 September and that by 11 November 2021, the communications of the Respondent’s management had made it crystal clear to the Applicant how the Policy would apply to her despite being on long service leave and on 17 November it was again made crystal clear to the Applicant in the Review of Employment letter, that the Company’s position is that it regards her as non- compliant and that she would be required to face a disciplinary process when she returned from long service leave and had an opportunity to provide a written response on 4 May 2022, as to why her employment should not be terminated. It was submitted that at this stage: “The seriousness of the matter could not have gone unnoticed and it beggars belief that the applicant would not have recognised the urgency for her to regularise her vaccination status if she wanted to persuade the company to adopt a lesser disciplinary sanction against her [than] termination of employment.”93 The Applicant provided no evidence in relation to her non-compliance with the direction and took no steps to become vaccinated after receiving the Review of Employment letter for two and a-half months and the only possible explanation for her inaction was a period in late January when she was infected with COVID – 19. Despite the four-month certificate the Applicant was given, she was able to safely be vaccinated prior to the expiration of the four months. [170] It was also submitted that the 29 March exchange with Mr Jenkins on Facebook Messenger was telling, and contrary to the Applicant’s evidence, it is clear from that exchange that Mr Jenkins is going to make other arrangements to cover for the applicant in the first run of the roster in recognition of the fact that the applicant simply cannot be there at work due to her non-compliance with the policy and that she was facing the review of employment process. It was also said to be significant that Mr Jenkins basically implored the Applicant to recognise the Respondent’s position in relation to compliance with the Vaccination Policy, to get vaccinated by 4 May 2022 and give herself a chance of a more lenient outcome. Further, it was submitted that Mr Jenkins’ implication is that while it is the Applicant’s decision, if she is not vaccinated, the inevitable outcome will be dismissal and the extent of the leniency she can seek will be “good leaver status”. The Applicant’s response to the Review of Employment letter was described by Counsel for the Respondent as follows: “She has consciously decided to stare down her employer on this issue, and it's reflected in her 4 May email which constitutes her written response. No acknowledgement of misconduct, no contrition, no indication of any preparedness to submit to the authority of her manager or her two-up manager. To the contrary, what she does is double down, gives her two-up manager a little lecture on how the policy should be applied, and then just basically tells him that she will get vaccinated before she returns to work, which of course is the date that she thinks should be the relevant date. It's the height of insubordination and it gives no cause for the company to afford her any leniency.”94 [2023] FWC 899 47 [171] Finally, as was the case in Tween, it was submitted that while an otherwise good and reliable employee with a lengthy period of service had made poor choices, and notwithstanding that the dismissal may have tragic aspects, this was not enough to save the Applicant from the consequences of her own decisions. The lack of insight or contrition by the Applicant was also said to be a basis for a conclusion that the Respondent’s trust and confidence in the Applicant had been destroyed as established by Mr O’Brien’s evidence that he must have trust and confidence in an airport manager to strictly adhere to safety and other requirements, even when it does not suit that individual. The approach to deciding whether a dismissal is unfair [172] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows: (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 FW Commission considers relevant. [173] Section 387(a) requires the Commission to consider “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)”. A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”95 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,96 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.97 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.98 However, where a dismissal relates to conduct of the employee, it is also necessary to determine whether the matter was of sufficient gravity to constitute a sound, defensible and well-founded (and therefore valid) reason for dismissal.99 [174] In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.100 Nor is the employer limited to relying on the reason given to the employee at the time of the dismissal to establish a valid reason for a dismissal although this may have implications for the considerations in s. 387 going to procedural fairness. [175] It is well established that a refusal on the part of an employee to comply with a lawful and reasonable direction, will generally constitute a valid reason for dismissal. The seminal decision concerning the requirement of employees to follow their employer’s lawful and [2023] FWC 899 48 reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday101 (Darling Island Stevedoring) in which Dixon J summarised the common law position as follows: “Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. 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 its 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.” [176] I accept that there are cases where a policy lacks a rational basis or seeks to regulate a matter that is trivial or is unreasonable so that non-compliance will not be a matter of sufficient gravity to constitute a valid reason for dismissal for the purposes of the criterion in s. 387(a). There will also be cases where a policy is unclear or ambiguous or not consistently applied so that a breach may not constitute a valid reason for dismissal. However, as a Full Bench of the Commission said in Briggs v AWH Pty Ltd102, the determination of whether an employer’s direction is reasonable, does not involve an abstract or unconfined assessment as to the justice or merit of the direction and it does not have to be demonstrated by the employer that the direction issued was the most preferable or most appropriate course of action, or in accordance with best practice or in the best interests of the parties.103 [177] The matters in s. 387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be: Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.104 Consideration Whether direction to Applicant was lawful and reasonable [178] The Applicant’s representative did not cross-examine witnesses for the Respondent who gave evidence going to the rationale for, and implementation of, the Vaccination Policy. While not mounting a direct attack on the Policy, the Applicant essentially contended that it was not reasonable in relation to the way it dealt with the impact of various forms of leave on compliance dates for vaccination. The Applicant also contended that the interaction between the Policy and the Q&A document was unclear and that any non-compliance was due to misunderstanding. These matters go to the reasonableness of the direction to comply with the Vaccination Policy. [179] In Mt Arthur Coal, a Full Bench of the Commission considered whether a direction that employees comply with a Site Access Requirement (SAR) with similar terms to the Vaccination [2023] FWC 899 49 Policy, was lawful and reasonable. After considering cases relating to the duty of an employee to follow a lawful and reasonable direction, the Full Bench identified the following principles: • A lawful direction falls within the scope of the employee’s employment and includes instructions incidental to that work; • Employer directions which endanger an employee’s s life or health, or which the employee reasonably believes will endanger his or her life or health are not lawful orders unless the nature of the work is inherently dangerous and the employee has contracted to undertake the risk; • The order or direction must be lawful in the sense that the employee cannot be instructed to do something that is unlawful; • Employees are only obliged to comply with employer directions that are lawful and reasonable; • Reasonableness is a question of fact having regard to all the circumstances, and what is reasonable may depend, among other things, on the nature of the particular employment;105 • The employer is not required to demonstrate that the direction issued was the preferable or most appropriate course of action or in accordance with best practice, or in the interests of the parties.106 [180] The Full Bench in Mt Arthur Coal determined that that consultation obligations under the WHS Act arose prior to the implementation of the SAR and under the model consultation term in the relevant enterprise agreement, when a definite decision to implement the SAR was made. The Consultation term in the relevant modern award in the present case is in substantially the same terms and the Work Health and Safety Act 2011 (Qld) is in the same terms as the NSW Act that was considered in Mt Arthur Coal. The Full Bench in that case went on to conclude that: [96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction. [181] The conclusion of the Full Bench in Mt Arthur Coal was that the SAR was prima facie “lawful” because: • it fell within the scope of the employment, and • there is nothing “illegal” or unlawful about becoming vaccinated. [182] However, the Full Bench found that the SAR was not a reasonable direction because the Company did not consult “as far as reasonably practicable” or in a “meaningful” way during an assessment phase, when the Company announced that it was “actively assessing whether to make vaccination a condition of entry to BHP worksites in Australia”. The consultation process was deficient because: [2023] FWC 899 50 • the decision to implement the SAR as communicated to employees was not open for reconsideration. • employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the introduction of the SAR; • employees were not provided with information relating to the reasons, rationale and data supporting the proposal; • employees were not given a copy of the risk assessment or informed of the analysis that informed that assessment; and • in effect, employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed? [183] There were a range of considerations that otherwise weighed in favour of a finding that the SAR was reasonable including that: • It is directed at ensuring the health and safety of workers of the Mine. • It has a logical and understandable basis. • It is a reasonably proportionate response to the risk created by COVID-19. • It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work. • The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time. • It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine. [184] The Full Bench also observed that the content of a requirement to consult is determined by context and that circumstances may dictate a quick response and a truncated consultation process. 107 [185] Extrapolating the principles in Mt Arthur Coal in the present case, the Vaccination Policy was intended to operate on a 20,000 strong workforce operating nationally and internationally. The Full Bench was only considering the SAR in respect of one mine, notwithstanding that it was implemented at all BHP Mines. While I do not underestimate the devastation on businesses and employees caused by the COVID – 19 Pandemic, the impact on the aviation sector was doubtless greater than on mining sector. Notwithstanding the raft of safety measures implemented by Qantas to protect staff, customers and its business, it remains the case that vaccination was, and is, the most effective control mechanism to manage risks associated with COVID – 19 and the introduction of the Vaccination Policy by Qantas was an entirely reasonable response to those risks. [186] Before deciding to implement the Vaccination Policy, Qantas consulted with employees and stakeholders and put in place a range of mechanisms to identify and address concerns about the Policy in general, and vaccination in particular. In Tween, applying the decision of the Full Bench in Mt Arthur Coal, Deputy President Easton concluded that the consultation undertaken by Qantas prior to the making of the decision to implement the Vaccination Policy, was not sufficient to meet its obligations under workplace health and safety legislation108, but that [2023] FWC 899 51 consultation after that date was appropriate and reasonable in the circumstances and sufficient to meet the Company’s obligations in this regard. 109 [187] I accept that finding was not contested in the present case but note that it is arguable that the circumstances faced by the Qantas Group at the point the Vaccination Policy was contemplated did dictate a quick response in terms of risk to employees, contractors, customers and to the viability of the business. That context also included a rapidly changing environment in terms of the strain of the virus then prevalent, the likelihood that it would mutate, the uncertainty about Government health directives and the fact that the Policy needed to operate across a 20,000 strong workforce operating nationally and internationally. [188] In any event, I am satisfied that any direction to an employee to comply with the Policy was both lawful and reasonable in the context that then existed, and based on engagement, consultation, education and support Qantas offered to its workforce. I also accept that the provisions of the Policy distinguishing between employees absent on various forms of paid and unpaid leave, were reasonable. In this regard, I accept Ms Burke’s evidence that the circumstances of employees absent on forms of unpaid leave and paid parental leave were substantively different, than those on leave without pay and paid parental leave, in terms of managing risks associated with the potential for a myriad of compliance dates, if compliance dates shifted based on the return of an employee from paid annual, long service and personal leave, rather than on a common date. This would have created an unmanageable situation. [189] Viewed in that context, this aspect of the Policy was logical. It self-evident that it is easier to minimise multiple compliance dates in the context of employees being “stood down” and “stood up” in a cohort, because of operational requirements, than it is to manage a situation where multiple individual employees who are taking various forms of paid leave, have a range of return dates and a corresponding range of compliance dates. In short, I accept that the way the Policy dealt with employees on paid and unpaid leave, minimised the risk of unvaccinated employees being inadvertently allowed to return to work. [190] Further, I accept that in the environment in which it was then operating, Qantas needed to have a workforce that it could rapidly deploy, with some certainty that external factors, such as changes to State and international vaccine requirements, or an outbreak of the virus, would not adversely impact its operations, and to minimise the risk to the health and safety of employees and others, of contracting the virus. Against that imperative, the wishes of an individual employee to become vaccinated when he or she returned from a period of paid leave, are significantly outweighed, other than where the employee sought and was granted an exemption, in accordance with the reasonable and appropriate process set out in the Policy. [191] While the Policy requirements in relation to compliance dates for employees on paid and unpaid leave could have been more clearly articulated in the Policy, I accept that objectively, they were clear enough on the face of the Policy to have been reasonably understood. In short, the Policy made clear that unless an exception was found in the Policy, compliance dates were as set out in in clause 3.4. The fact that employees were on paid leave was not stipulated as an exception to the requirement to be vaccinated. It is axiomatic that the Compliance dates for employees on paid leave were the dates set out in the Policy – 15 November 2021 for ASIC red card holders and 31 March 2022 for all other employees. [2023] FWC 899 52 [192] The Policy clearly stipulated that it applied to Australia-based employees unless otherwise specified and did not otherwise specify for employees absent on leave other than employees stood down (clause 3.5) or on specified forms of leave without pay or paid or unpaid parental leave at the compliance date. The Policy stated at 1.5 that it replaces and supersedes all prior agreements and understandings for employees, including the COVID – 19 Support Policy and the COVID – 19 Vaccination Employee Q&A unless expressly stated otherwise in the Policy. The Policy did not expressly state otherwise in respect of compliance dates for employees on any form of leave other than the forms of leave set out in clause 3.6 of the Policy. [193] Further, I accept that any gaps or uncertainty in the operation of the Policy were filled by the Q&A document and that if employees had any concerns in this regard, they were provided with ample opportunity to clarify the Company’s position in relation to their circumstances. The Q&A document made it clear at question 16, that if an employee was on another form of leave (ie. other than SLWOP/LWOP or paid or unpaid parental leave) the employee would need to comply with the requirements under the Policy by the compliance date applicable to the employee – 15 November 2021 for employees in Category A and 31 March 2022 for employees in Category B, unless granted an exemption under the Policy. The Policy and the Q&A document made the requirements of the Policy clear. While it might have been preferable to have included a reference in the Policy to compliance dates not being extended by absence on other forms of leave, this did not cause the Policy to be deficient so as to render it unreasonable to direct employees to comply. Whether there was a valid reason for the Applicant’s dismissal [194] I am satisfied and find that the Applicant did not comply with a lawful and reasonable direction given to her by the Respondent, and that there was no reasonable excuse for her failure in this regard. I am also satisfied that the Applicant’s non-compliance was wilful and not because she was mistaken about the meaning or the effect of the Vaccination Policy. This is apparent when the timeline of events is considered. While there may be cases where failure to comply with a direction is not a valid reason for dismissal because an employee reasonably misunderstands the direction, this is not such a case. While I do not go so far as to say the Applicant was dishonest in her evidence to the Commission, her attempts to establish that she misunderstood the requirements of the Respondent’s vaccination Policy and that she did everything possible to comply with that Policy, were completely unconvincing. [195] The Applicant knew on 18 August 2020, when she received an email sent to all employees by Qantas, that if the then proposed Vaccination Policy was introduced, she would be required to comply by 15 November 2020, and this was confirmed on 20 September 2020. While the Applicant applied for long service leave on 31 August 2021, the Applicant was not notified that her leave had been approved until 19 October 2021. The Facebook Messenger exchange with Mr Jenkins tendered by the Applicant does not state the period of leave that was approved, but I accept her evidence that the leave was scheduled to commence on 15 November 2021 and conclude on 1 May 2022. [196] On her own evidence, when the Applicant looked at the Vaccination Policy and the Q&A document on or around 20 September 2021 it was not clear to her how the Policy applied in circumstances where she may be on long service leave, assuming that her leave was approved. It is also the case that both the Policy and the Q&A were document provided with [2023] FWC 899 53 the Policy and the covering email stated that information could be found in the documents embedded in the email. The Q&A document, which the Applicant said that she looked at when she read the Policy, states that its purpose is to assist employees to understand the requirements of the Policy and that they are encouraged to read it in full because it contains comprehensive information regarding the requirements of the Policy. [197] Given that the Vaccination Policy is silent on long service leave and does not indicate that the compliance date for an employee absent on such leave is extended past 15 November 2021, the Applicant cannot have reasonably believed when she read the Policy, that her compliance date for vaccination was when she returned from long service leave. This is so, even if the Applicant did not read the Q&A document, or if the Applicant read and disregarded the Q&A document. [198] The Applicant’s evidence about her understanding of the Policy and the Q&A document, and the basis upon which she disregarded the Q&A document and did not accept that it clarified the points she was confused about, was completely unconvincing. The Applicant is obviously intelligent and articulate and held a relatively senior position with the Respondent. The Applicant provided no reasonable explanation for her confusion and for persisting with her interpretation of the Policy and the effect of the Q&A document. I was left with the overwhelming impression that the Applicant did all she could to create an appearance of confusion to cover her wilful refusal to comply with a lawful and reasonable direction given by her employer. [199] If the Applicant was genuinely confused about the application of the Policy to her circumstances, she could have clarified the matter by reading the Q&A document and accepting what it plainly stated or sought further clarification from a manager or HR as stated in the Policy. Instead, the Applicant did nothing to clarify the position between 20 September when she received the final version of the Policy and 19 October when her long service leave was approved. [200] Dr Prasad’s evidence was that the three vaccines approved for use by 15 November 2021, were Comirnaty (Pfizer), Vaxzevria (AstraZeneca) and Spikevax or Takeda (Moderna). Pfizer and Moderna have a three-week recommended period between doses while the period between doses for AstraZeneca is eight weeks. The Applicant could and should have become vaccinated between 20 September and 19 October. During this period, even on her own evidence, the Applicant knew that her compliance date was 15 November 2021, as her long service leave had not been approved. Even after the approval of her leave, the Applicant took no steps to seek advice or information about her circumstances or to become vaccinated. Further, at the point the Applicant’s leave was approved she had put herself in a position whereby if her leave was not approved, compliance by 15 November would have been difficult, if not impossible, given the need to arrange to be vaccinated and the recommended periods between doses for the various vaccines. [201] The Applicant compounded her wilful non-compliance with the Policy by disregarding what she was told by both her direct manager Mr Jenkins, and her next level up manager, Mr O’Brien before she proceeded on long service leave. Even on her own version of the telephone conversation with Mr Jenkins on 5 November 2021, the Applicant was informed that there would be a difficulty being paid for her long service leave in circumstances where she was not [2023] FWC 899 54 vaccinated in accordance with the Policy. The Applicant also maintained that she was told by Mr Jenkins that she would have to take SLWOP or LWOP. It should have been apparent to the Applicant that this comment indicated that the 15 November compliance date applied to paid long service leave but did not apply to SLWOP or LWOP as stated in the Policy. At very least, it should have been apparent that there was an issue with the Applicant proceeding on long service leave without being fully vaccinated by 15 November 2021, that date. [202] There is also the matter of the Applicant’s email exchange with Mr Jenkins on 5 November 2021. If the Applicant was in doubt about the interaction between her long service leave and her compliance date when she sent this email, she could not have doubted the position after receiving Mr Jenkins’s response. The Applicant specifically stated in her email that she could not find anywhere in the Policy that she was required to be vaccinated if she was on long service leave and asserted that she would be compliant as long as she was vaccinated on her return. The Applicant also asked for a reference as to where she could find the answer to this query. Mr Jenkins’ response clarified this issue and set out question 16 and the answer to that question from Q&A document. Rather than engage with the substantive issue of Mr Jenkins’ clear advice, that because the Applicant was not vaccinated she had not complied with the Respondent’s direction, the Applicant raised the issue of the reference to long service leave being in the Q&A document rather than the Policy. The Applicant also indicated that she would follow Mr Jenkins’s suggestion and submit a temporary exception on the grounds that she would not be in the workplace for the next six months. This concession indicates that the Applicant accepted that she needed an exemption, and notwithstanding, the Applicant did not seek one. [203] Instead, in an email on 6 November 2021, the Applicant sought further clarification from Mr O’Brien, her next level manager, about her situation. In that email the Applicant sought clarity as to whether she would be paid for her long service leave in circumstances where she was not vaccinated, and questioned why she needed to be vaccinated when she would be absent from the workplace for six months. It is apparent from the questions in the Applicant’s email to Mr O’Brien that she understands that she is required to be vaccinated by 15 November 2021, and is questioning why this is the case, and pointing out a deficiency she asserts in the Policy because it does not refer to long service leave, sick leave or annual leave. [204] Mr O’Brien’s response on 9 November 2021, confirmed that the Applicant’s long service leave remained approved and stated Mr O’Brien’s understanding that the Applicant had been informed that as a red ASIC holder she must comply with the Vaccination Policy by 15 November 2021. The only question in the Applicant’s next email to Mr O’Brien sent on 9 November 2021, is whether she would be paid her long service leave if she was not fully vaccinated by 15 November. Mr O’Brien’s response on 11 November makes it clear that the Applicant will be paid while on long service leave, regardless of her vaccination status and that if she is not compliant with the 15 November date for vaccination, she should expect to receive a call from Mr Jenkins to advise of the next steps in relation to her non-compliance. The email also indicates that the next steps will involve a disciplinary process and that the Applicant can opt to end her long service leave to participate or wait until the end of her long service leave. The Applicant did not respond to that email. [205] On her own evidence, the Applicant received “numerous calls” from Mr Jenkins which she “declined”. Despite declining calls the Applicant was able to engage in a text message [2023] FWC 899 55 exchange with Mr Jenkins on 16 November. In that exchange, the Applicant denied that she had been provided with options by Mr O’Brien, when this was not the case and then asserted – incorrectly – that Mr O’Brien’s email did not state what the process would be. In my view, a reasonable reading of these exchanges indicates wilful refusal by the Applicant to accept what she has been clearly told and to create an appearance of confusion. While the Applicant may have been entitled to refuse to have a telephone discussion with Mr Jenkins because she was on long service leave, it is telling that she continued to engage via Facebook Messenger and ignored Mr Jenkins’ view that she should call him so that he could answer her questions and explain the position with respect to her long service leave. [206] The Applicant’s evidence about her alleged lack of understanding about this series of correspondence and communication was not credible. The Applicant had been informed, before she commenced long service leave, by her manager Mr Jenkins and her next level Manager Mr O’Brien, that: • The answer to her question about the interaction between paid leave and her compliance date was in the Q&A document which was twice copied and pasted into an email to her with highlighting added to the relevant sections; • Her long service leave would be paid despite the fact she was not vaccinated; • Her compliance date for vaccination and uploading details remained 15 November 2021 despite the fact that she was on long service leave; and • If the Applicant was not vaccinated by the 15 November 2021 she would be subject to a disciplinary process and had the option to engage in that process immediately or on her return from long service leave. [207] While the Applicant did not receive specific and detailed answers to her questions about the rationale for the different compliance dates for various forms of leave, that does not invalidate the reason for dismissal. The Applicant was informed about the Policy and how it affected her and if she wanted further information, the Applicant had ample opportunity to seek that information before the start of her long service leave. The fact that the Applicant could not have complied with the vaccination requirement between receiving the correspondence from Mr Jenkins and Mr O’Brien, and the commencement of her long service leave, is not to the point. It was the Applicant’s unreasonable refusal to accept the Policy and the Q&A document that placed her in that position. The Applicant’s continued refusal to accept what she was told by her managers was unreasonable. By 17 November 2021, when the Applicant received the Non-compliance letter, her position was untenable. [208] While the Applicant was entitled to wait until the end of her long service leave to respond to that letter, her response was glib and made no attempt to explain her position, in circumstances where she must have known that it was wrong. The Applicant knew prior to commencing her long service leave, that she was considered by the Respondent to be non- compliant with its Vaccination Policy, regardless of her view about the matter. If the Applicant was confused before commencing her leave (and I do not accept that she was) any misapprehension about the serious position she was placing herself in, could not have existed after 17 November 2021 when she received the Non-compliance letter. The fact that the Applicant could not have complied with the Vaccination Policy at that point, does not alter the fact that she had been informed about the requirements of the Policy well before the compliance [2023] FWC 899 56 date, and in sufficient time for her to make inquiries, and that the Applicant was warned that her employment was in jeopardy shortly after the date for compliance had passed. [209] Rather than acknowledging and accepting her non-compliance, or even attempting to explain it, the Applicant simply stated that she would be vaccinated when she returned to the workplace. That response indicates wilful non-compliance and a refusal to accept the seriousness of her conduct. Although not relied on at the hearing, I also note that the Applicant provided a further response to the Non-compliance letter via her then representative, Ms Tokaji. The further response does not engage with the issues and otherwise raises irrelevant matters that have been consistently dismissed by courts and tribunals in cases where employees have been dismissed or been subjected to restrictions due to refusal to comply with vaccination requirements. [210] In any event, the Applicant did not comply with her undertaking to be vaccinated by the time she returned to work. The Applicant’s long service leave ended on 1 May 2022, and on 17 November 2021, she had been informed, via the Non-compliance letter, not to attend work at the conclusion of her leave, until further notice. That letter also informed the Applicant that she would be paid for this period and must be available at the Company’s request. According to the email from Mr Jenkins, the Applicant was scheduled to return to work on 4 May 2022. The reason the Applicant could not return was because she was subject to a disciplinary process due to her non-compliance with the Vaccination Policy. I do not accept that the Applicant can have reasonably believed, based on the email correspondence from Mr Jenkins in relation to her return to work, that her compliance date had been extended. Accordingly, the fact that the Applicant was fully vaccinated by 10 May 2022, does not constitute compliance with the Vaccination Policy and nor does it excuse her wilful failure to comply. Rather, becoming vaccinated in her own time, is a further indication of that wilful failure. [211] Mr Jenkins’ message to the Applicant that he would allow for the first run of the roster “while these things are sorted out” did not alter the Applicant’s compliance date of 15 November 2021. The Applicant should have noted that Mr Jenkins was asking her as a friend whether she would be compliant by 4 May 2022, and indicating that if she was not, the Applicant should at least try to retain “good leaver status”. Regardless of the actual meaning of Mr Jenkins’ comment, it was a clear message that if the Applicant was not vaccinated or did not obtain an exemption by 4 May, her employment would probably end. Messages from work colleagues about seeing the Applicant’s name on the roster, did not alter the situation she was in. Quite simply, on 15 November and thereafter, the Applicant was non-compliant with the Vaccination Policy. She was informed of her non-compliance before commencing long service leave and on 17 November 2021, it was made clear to the Applicant that her non-compliance would result in her being the subject of a disciplinary process with the potential for the termination of her employment. [212] The Applicant took no steps to comply with the Policy in a reasonable timeframe and nor did she take steps to explain her non-compliance. In those circumstances, it was reasonable for the Respondent to conclude that the Applicant’s failure to comply with the Policy was wilful and accordingly, that failure was a valid reason for dismissal. [2023] FWC 899 57 Whether the Applicant was notified of the reason for dismissal [213] I am satisfied that the Applicant was notified of the reason for her dismissal, via the Non-compliance letter of 17 November 2021, and further correspondence before the Applicant was dismissed. Whether the Applicant was given an opportunity to respond to reasons for dismissal [214] I am also satisfied that the Applicant was given an opportunity to respond to the reasons for her dismissal. For reasons set out above, I do not accept that the Applicant was under any misapprehension or confusion about those reasons. Further, I am satisfied that the Applicant was given numerous opportunities to respond to the reasons for dismissal. The fact that the Applicant squandered her opportunities and maintained an unreasonable position, does not in any way render her dismissal unfair. Any unreasonable refusal to allow the Applicant to have a support person [215] This consideration is not relevant. The Applicant requested a support person at the meeting she consented to attend, and the Respondent granted that request. Whether Applicant warned about unsatisfactory performance [216] The Applicant was not dismissed for unsatisfactory performance and this consideration is not relevant. Impact of size of enterprise impacted on the procedures followed in effecting dismissal [217] The Respondent is a large employer and is part of a larger group. There is no basis for considering this matter. Impact of dedicated human resource managers on procedures followed in effecting dismissal [218] Given the size of the Respondent and its access to dedicated human resource managers, this is also not a relevant consideration. Any other relevant matters [219] I consider the following matters to be relevant to whether the Applicant’s dismissal was unfair. The Applicant had fifteen years of unblemished service. Mr O’Brien agreed that the Applicant was a hard worker. There is no indication of any issues with the Applicant’s conduct, or work performance, prior to the events that led to her dismissal. The Applicant had been promoted by the Respondent and at the time of her dismissal held the position of Airport Duty Manager at the Brisbane Airport, having previously held that position at Cairns Airport. [220] I accept the Applicant’s evidence that her dismissal has had adverse consequences financially for the Applicant and her family. I also accept that the dismissal has caused the Applicant to suffer stress and anxiety, for which she has received psychological treatment. [2023] FWC 899 58 [221] Against those considerations, the following are also relevant. The Applicant has provided no explanation for her conduct, other than asserting confusion about the Policy. For the reasons set out above, I do not accept that explanation. The matters about which the Applicant was confused were clarified, and the Applicant provided no further explanation for continuing her non-compliance. While it was asserted in cross-examination that Mr O’Brien should have been aware that the Applicant was having issues associated with her mother’s health at the time the events that led to her dismissal were unfolding, the Applicant provided no evidence about this. [222] The Applicant asserted in her communication with the Respondent’s managers that she had been “transparent” about her position in relation to vaccination. Despite this, the Applicant placed no evidence before the Commission about her position. If the Applicant’s position was that she was waiting to receive the Novavax vaccine, that vaccine was not available until February 2022 and the Q&A document made clear that an exemption would not be granted from the Policy requirements simply because an employee preferred to wait for Novavax to be available. [223] The Applicant held a position where she was responsible for a team of employees and according to Mr O’Brien’s evidence, was a member of the leadership team. As such, the Applicant should have been a model for the conduct expected of team members, including compliance with workplace health and safety requirements. Instead, the Applicant wilfully disregarded an important workplace health and safety policy. [224] Finally, despite the Applicant’s position about the Vaccination Policy with respect to absence on long service leave, being shown to be incorrect, the Applicant has maintained her position and refused to acknowledge any error on her part. This is not a case where a longstanding employee with an unblemished work history failed to comply with a Policy because of an honest and reasonable belief that it did not apply. Rather, the Applicant’s non- compliance was wilful and unreasonable. On balance, there are no additional factors that render the Applicant’s dismissal unfair. Conclusion [225] The Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, the application for an unfair dismissal remedy made by the Applicant must be dismissed. An Order to that effect will issue with this Decision. VICE PRESIDENT [2023] FWC 899 59 Appearances: Mr T O’Brien of Counsel instructed by Shine Lawyers for the Applicant. Mr R Dalton KC and Mr M Minucci of Counsel, instructed by Ashurst for the Respondent. Hearing details: 2022. Brisbane: 4 December. Printed by authority of the Commonwealth Government Printer <PR761144 > 1 Exhibit A1, Applicant’s Witness Statement at [48]. 2 Exhibit R1, Elen Burt’s Witness Statement at [8]. 3 Ibid at [9]. 4 Ibid at Annexure EB-5. 5 Exhibit A1. 6 Exhibit A3. 7 Exhibit A2. 8 Exhibit A4. 9 Exhibit R1. 10 Exhibit R2. 11 Exhibit R3. 12 Exhibit R4. 13 Exhibit R2 at [8]. 14 [2021] FWCFB 6059. 15 Stuart Tween v Qantas Airways Limited [2022] FWC 1594; Joshua Piggott v Qantas Airways Limited [2022] FWC 1172; Annunziata Cinque v Jetstar Airways Pty Ltd [2022] FWC 2235. 16 Exhibit R3, Matthew Franzi’s Witness Statement, Annexure MF-1 and MF-2. 17 Exhibit R1, Annexure EB-1 at [7]. 18 Ibid. 19 Ibid. 20 Ibid, Annexure EB-3. 21 Exhibit R3, Annexure MF-4. 22 Exhibit R1, Annexure EB-4. 23 Exhibit R1, Annexure EB-5. 24 Ibid. 25 Exhibit R1 Annexure MW -11. 26 Exhibit A1 Witness Statement of Megan Willoughby Annexure “MW16”. 27 Exhibit A1 Annexure MW-22. [2023] FWC 899 60 28 Transcript PN79 – 80. 29 Transcript PN81 – 90. 30 Transcript PN97 – 98. 31 Transcript PN108 – 119. 32 Transcript PN127 – 132. 33 Transcript PN139 – 143. 34 Transcript PN149. 35 Transcript PN150. 36 Transcript PN156. 37 Transcript PN159 – 168. 38 Transcript PN180 – 181. 39 Transcript PN182 – 187. 40 Transcript PN221 – 224. 41 Transcript PN228 – 223. 42 Transcript PN240 – 243. 43 Transcript PN251 – 261. 44 Transcript PN264 – 267. 45 Transcript PN277 – 280; Exhibit R4 Annexure PO-15. 46 Transcript PN287 – 291. 47 Transcript PN301 – 305. 48 Transcript PN317 – 323. 49 Transcript PN324 – 326. 50 Exhibit A1 Annexure MW-13. 51 Transcript PN335. 52 Transcript PN346 – 355. 53 Transcript PN368 – 369. 54 Transcript PN370 - 371 55 Transcript PN382. 56 Transcript PN388 – 392. 57 Transcript PN420 – 423. 58 Transcript PN424 – 426. 59 Exhibit R 4 Annexure PO-9. 60 Ibid Annexure PO-10. 61 Ibid Annexure PO-16. 62 Exhibit R4 Annexure PO-11. 63 PN510 – 513. 64 PN533 – 534. 65 Transcript PN535. 66 Exhibit R4 Annexure PO-11. 67 Transcript PN605 – 606. 68 Transcript PN607 – 610. 69 Transcript PN625 – 627. 70 Transcript PN633 – 636. 71 PN652 – 653. [2023] FWC 899 61 72 Transcript PN664. 73 Transcript PN671. 74 Transcript PN752 – 762. 75 Transcript PN765, 76 Transcript PN766 – 768. 77 Ming-Lan Chiu v Liebherr-Australia Pty Ltd [2022] FWC 1842. 78 Milton v TransAdelaide [2003] SAIRC 15. 79 Transcript PN847. 80 [2022] FWC 1922. 81 [2022] FWC 1448. 82 Stuart Tween v Qantas Airways Limited [2022] FWC 1594; Joshua Piggott v Qantas Airways Limited [2022] FWC 1172; Annunziata Cinque v Jetstar Airways Pty Ltd [2022] FWC 2235. 83 [2022] FWC 1594. 84 Wake v Queensland Rail [2006] AIRC 663, PR974391 at [2]-[3] and [21]-[22]; Woolworths Limited (t/as Safeway) v Brown, PR963023 at [34]; B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1 at [36]; Anderson v Thiess Pty Ltd [2015] FWCFB 478 at [27]. 85 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 621-622 (Dixon J). 86 Tween v Qantas Airways Limited [2022] FWC 1594 at [134]. 87 [2022] FWC 1842. 88 Ibid at [2]. 89 Ibid at [4] – [5], [32]. 90 Tween v Qantas Airways Limited [2022] FWC 1594 at [5]. 91 Ibid at [136]. 92 See COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) (QLD). 93 Transcript PN97. 94 Transcript PN923. 95 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. 96 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C. 97 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J. 98 Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267 (12 June 1996); (1996) 142 ALR 681 at para 24. 99 Sydney Trains v Gary Hilder [2020] FWCFB 1373. 100 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000. 101 (1938) 60 CLR 601. 102 [2013] FWCFB 3316. 103 Ibid at [8]. 104 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ. 105 Op. cit. at [68] – [70]. 106 Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316. 107 [2021] FWCFB 6059. 108 [2022] FWC 1594 at [69]. 109 Ibid at [70] and [76].