Appeal against a decision of the Commission in matter U 61/2022 given on 14 August 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00089

DELIVERED : FRIDAY, 1 MARCH 2024

FILE NO. : FBA 4 OF 2023

Appellant

AND

Roman Catholic Bishop of Bunbury

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL RELATIONS COMMISSION

Coram : COMMISSIONER T B WALKINGTON

Citation : [2023] WAIRC 00685

File No : U 61 OF 2022

Catchwords : Industrial law (WA) - Appeal against decision of Commission - Alleged harsh, oppressive and unfair dismissal - Refusal to comply with a lawful and reasonable direction - Procedural fairness - Exercise of discretion miscarried - Appeal upheld

Legislation : Industrial Relations Act 1979 (WA) s 29, s 49(5)(c), s 49(6a)

Occupational Safety and Health Act 1984 (WA) s 19(3), s 20(1), s 20(3)

Work, Health and Safety Act 2020 (WA)

Work Health and Safety Act 2011 (NSW)

Result : Appeal upheld

Representation:

Counsel:

Appellant : In person

Respondent : Mr I Curlewis of counsel

Solicitors:

Appellant : -

Respondent : Laven Legal

Case(s) referred to in reasons:

Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059

Director-General Department of Education v State School Teachers Union [2020] WAIRC 00927; (2020) 100 WAIG 1493

Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621

Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595

Marshall v Lockyer [2006] WASCA 58

Mount Lawley Pty Ltd v Western Australia Planning Commission (2004) 29 WAR 273

North Television Corp (1976) 11 ALR 599

Parnell v The Roman Catholic Archbishop of Perth [2020] WAIRC 00420; (2020) 100 WAIG 1216

Scott v Consolidated Paper Industries (WA) Pty Ltd ((1998) 78 WAIG 4940

Soulemezis v Dudley Holdings (1987) 10 NSWLR 247

Whittaker v Unisys Australia Pty Ltd [2010] VSC 9; (2010) 26 VR 668

Reasons for Decision

KENNER CC:

Background and proceedings at first instance

1         The appellant was employed by the respondent between 17 March 2008 and 6 April 2022.  The appellant was employed as a Relationship Manager, reporting to the respondent’s Financial Administrator.  As a Relationship Manager, the appellant was responsible for customer service for the Catholic Development Fund, established to finance church activities.  This involved a number of duties including liaising with current depositors and lenders; promoting the fund to potential investors and lenders; maintaining customer accounts; supporting customers, including internet banking; liaising with stakeholders; and supervising customer service staff. The appellant was primarily engaged in servicing customers in the Bunbury region, in Western Australia.

2         In January 2022, in response to the pandemic, the respondent introduced a policy requiring all employees in the Bunbury Diocese working in Diocese premises to be vaccinated against COVID-19.  The policy required that employees have at least two vaccinations by 31 January 2022.  Proof of vaccination status or, alternatively, a valid exemption from vaccination was required.  For the purposes of context, the appellant had, immediately prior to this, in various communications with the respondent from late October to early December 2021, expressed strident opposition to vaccine mandates generally, and COVID-19 vaccines in particular (see AB248 -254).

3         The respondent sent an email to all staff in the Diocese dated 24 January 2022, notifying them of the COVID-19 policy, and including a copy of it.  Given the cases of the parties, and the appellant’s reference to its terms, it is convenient to set it out at this juncture as follows (see AB103-104) :

Background

This policy relates to the vaccination status for all employees of the Diocese of Bunbury and its organisations.

On 20 October 2021 the West Australian State Government mandated COVID-19 vaccinations for occupations deemed critical to the ongoing safety and function of the community.  In addition, the direction indicated that most other occupations will be required to be fully vaccinated to attend work in the event of a lockdown or similar restrictions.

Some of these occupations deemed critical share premises with employees of the Diocese of Bunbury and its organisations.  Others work from other premises owned and controlled by the Roman Catholic Bishop of Bunbury (RCBB).

On 20 January 2022, the West Australian State Government announced, based on the latest health advice, that its Safe Transition Plan has been updated with a new hard border from Saturday 5 February 2022, in response to serious concerns around the impacts of the Omicron variant.

The purpose of this policy is:

• To give effect to this State Government mandate; and,

• To fulfil the obligations of the RCBB under the Occupational Safety and Health Act 1984 (WA), so far as reasonably practicable.  These are to provide and maintain a working environment in which the employees are not exposed to hazards.

Scope

This policy applies to all diocesan employees and parish employees engaged in employment and service activities in the Diocese of Bunbury.

Principle

The RCBB will not impose restrictions on employees beyond that mandated by State Government.

Policy

To the extent that this policy follows State Government direction, the requirements set out herein are considered lawful and reasonable directions.

In line with the State Government mandate of 20 October 2021, owing to the nature of their occupation, all employees working in the Diocese of Bunbury, or any other premises owned or controlled by the RCBB, are to be fully vaccinated by 31 January 2022.

All other employees are strongly encouraged to become fully vaccinated (including booster shots where recommended) as soon as possible, especially where they undertake activities in respect of essential work, including health and aged care.

Employees can attend vaccination appointments during paid working hours.  This is to be coordinated though relevant supervisor.

Collection of Data

In order to assess and ensure compliance with this policy and the State Government mandate, it is necessary to collect evidence of vaccination status from all employees regardless of the location of their activities or place of work.

A COVID-19 Digital Certificate is the only acceptable proof of vaccination.  This certificate can be downloaded from MyGov or Medicare.  Certificates are to be emailed to:  [email address omitted] Providing this evidence may become an annual requirement.

Information collected will only be used and disclosed for the purposes described in this policy.  Information collected will be recorded with appropriate privacy safeguards.  Once recorded Certificates will be destroyed.

A certificate of declaration of exemption from vaccinations from the West Australian Government should be forwarded to:

[email address omitted]

Refusals and Exemptions

Action taken in relation to unvaccinated employees will depend upon their circumstance, including whether or not it involves:

• refusal to comply with a lawful and reasonable direction;

• a medical exemption;

• an employee who is subject to State Government mandated occupations; or

• an employee who is affected by a lockdown or similar restrictions

Action taken in these circumstances will be subject to the WA Industrial Relations Commission (Acts and Regulations subject to its jurisdiction), and involve consultation between the employee and their supervisor and may result in the employee:

• working from home (if agreed or directed);

• being redeployed to another area; or

• taking annual or long service leave.

Only when these options have been exhausted will a stand down or termination of employment be considered in consultation with and the approval of the RCBB.

Policy Updates

Noting that State Government directions on these matters can frequently change in response to the situation, the RCBB may update this Policy as necessary to ensure currency, particularly where it is necessary to comply with any Health Direction issued under Emergency Management Act 2005 (WA).

4         On 25 January 2022 the appellant sent an email to the respondent’s Financial Administrator, Mr Ogilvie, indicating that he would not be vaccinated by 31 January 2022, and requesting a time to discuss the matter.  The next day, Mr Ogilvie wrote back to the appellant, enquiring of him when he would be able to comply with the policy.  He also noted that the appellant had ‘shared before your thoughts on COVID-19 vaccinations’.

5         In a response on 27 January 2022, the appellant responded to Mr Ogilvie and stated that he had some questions about the policy and how it would impact upon him in the workplace.  The appellant indicated that Mr Ogilvie’s refusal to meet with him was causing him stress and anxiety.  He indicated that he had made an appointment with his doctor that day, and would be taking the rest of the day off on sick leave for stress.  He undertook to provide a doctor’s certificate in due course.  The appellant commenced sick leave on 27 January 2022, the day he responded to Mr Ogilvie, and provided the respondent with a medical certificate for sick leave for the period from 27 January 2022 to 14 February 2022.

6         Prior to the expiry of the appellant’s sick leave, on 11 February 2022 Mr Ogilvie wrote to the appellant and informed him that the respondent’s COVID-19 policy required him to provide the respondent with evidence of his vaccination status or a valid medical exemption, to enable him to enter the Diocese premises to attend work.  Reference was made to the appellant’s duties, including his requirement to supervise staff, be available to customers and priests and also to undertake school visits to see Principals and Bursars.  Mr Ogilvie noted that to the date of his correspondence, the appellant had not provided evidence as to his vaccination status or evidence of a valid medical exemption.

7         In light of these matters, the respondent directed the appellant not to attend the premises of the Diocese unless he had two vaccinations.  Furthermore, as a temporary measure, the respondent directed the appellant to undertake annual leave from 15 February to 8 March 2022 to enable the appellant a longer period of time to consider the respondent’s request and the requirements of the policy.  Mr Ogilvie requested that the appellant provide to him evidence of his vaccination status or of a valid medical exemption by 12 noon on 8 March 2022.

8         By a response of the same day, the appellant reiterated that he had not been consulted in relation to the respondent’s COVID-19 policy and nor had there been any discussion with him about the matter despite his request.  The appellant also sought to discuss with the respondent the possibility of him working from home for the period of 15 February to 8 March 2022 rather than taking annual leave.  The appellant referred to other employees in Relationship Manager positions in Melbourne, who had been working from home.

9         Correspondence took place between the appellant and Mr Ogilvie about these matters and meetings took place as well.  It was common ground that the respondent did not agree to the appellant working from home, given his duties and responsibilities.

10      Subsequently on 18 March 2022 Mr Ogilvie wrote to the appellant.  The letter was headed ‘Show Cause – Inability to carry out your duties’.  In the letter, Mr Ogilvie referred to the previous communications between the respondent and the appellant regarding his compliance with the COVID-19 policy.  Mr Ogilvie referred to the fact that the appellant had still not provided the respondent with evidence of his vaccination status or evidence of a valid medical exemption.  The letter referred to the fact that the appellant had been unable to carry out the requirements of his position as he had not been able to attend Diocese premises or the location of the customers.  As a result, the appellant had been on annual leave from 15 February until 22 March 2022.

11      Furthermore, Mr Ogilvie referred to his correspondence of 11 February, 14 February, and 21 February 2022, and a meeting held between the appellant and Mr Ogilvie on 2 March 2022, including subsequent correspondence on 2 March and 10 March 2022, where the appellant was advised that a working from home arrangement was not tenable in his position.

12      Mr Ogilvie also informed the appellant that his request for extended long service leave, given the short notice, could not be agreed to given the requirements of his position.  Mr Ogilvie also explained to the appellant that it was a part of his responsibilities to meet with customers and potential customers, both in and outside of the Diocese office, including undertaking visits to Catholic Homes Inc, for aged persons, which required full vaccination status or a medical exemption.

13      Given the above, the appellant was informed that his continued non-compliance with the COVID-19 policy placed his continuing employment in jeopardy and he was given an opportunity to respond as to why ‘the Diocese should not consider the employment at an end.’  The appellant was required to respond by 3.00 pm on 25 March 2022.  The appellant was reminded that he was under direction not to attend the workplace nor to undertake any work from home.  The appellant would remain on ‘special paid leave’ from 2 to 25 March 2022.

14      It was common ground that the appellant did not provide to the respondent evidence of his vaccination status, or a valid medical exemption, as requested in accordance with the respondent’s COVID-19 policy.

15      The appellant corresponded further with Mr Ogilvie and, by letter of 28 March 2022, Mr Ogilvie responded to the appellant’s request to engage in the grievance process in accordance with his Conditions of Employment.  The respondent declined to engage in mediation with the appellant, given the extensive communications that had taken place between January and March 2022, without resolution.  In this regard, Mr Ogilvie informed the appellant that:

Given the exhaustive discussion through emails and meetings in January and March, and the intractability of the issues involved, the implementation of clause 20.6 will be clearly impractical given the diametrically opposed positions of you and the Diocese.

16      Mr Ogilvie’s letter went on to advise that the respondent would propose two possible arbitrators for the appellant to choose from by Wednesday 30 March 2022.  If the appellant had any possible arbitrator in mind, he was to notify the respondent by 5 pm Tuesday 29 March 2022, setting out that person’s suitability, along with the estimated cost and time to undertake the arbitration process.

17      Whilst the appellant sought a further period of three days to select a possible arbitrator, the respondent was not prepared to agree to this and provided a deadline of 5.00 pm Wednesday 30 March 2022.  Later, on Tuesday 29 March 2022, the appellant withdrew his consent for the appointment of an arbitrator and again considered that mediation would be appropriate and also reiterated his request for long service leave.

18      Further correspondence took place between the parties over the ensuing days.  Finally, by letter of 6 April 2022, Mr Ogilvie wrote to the appellant and informed him that despite every opportunity to do so, the appellant had failed to comply with the respondent’s COVID-19 policy.  Furthermore, Mr Ogilvie informed the appellant that all the overwhelming communications between the appellant and the respondent, both in writing and in two meetings to discuss the issues, had been adversarial and argumentative, with the appellant displaying an uncooperative approach.

19      Mr Ogilvie also stated to the appellant that his approach had been to engage with other employees of the respondent, in an endeavour to obtain their support in his opposition to compliance with the respondent’s COVID-19 policy. The respondent concluded that the appellant’s actions had prevented him from undertaking his duties and attending the Diocese premises.  The respondent took the view that this constituted a repudiation of the appellant’s contract of employment with the respondent which, by the letter of 6 April 2022, the respondent accepted.  Accordingly, the respondent regarded the appellant’s employment as at an end on that date.

The appellant challenges his dismissal

20      The appellant commenced proceedings under s 29 of the Industrial Relations Act 1979 (WA) alleging that he was harshly, unfairly and oppressively dismissed.  As well as opposing the appellant’s claim on the merits, the respondent also contended that the appellant’s claim was beyond the Commission’s jurisdiction, as the appellant was not dismissed, rather his contract of employment came to an end as a result of his repudiation of it.  It was the respondent’s argument that through his conduct and behaviour, in refusing to comply with the COVID-19 policy, and thereby him being unable to perform his duties as Relationship Manager, the appellant’s employment ended on the appellant’s initiative, and he was not dismissed.  As to this issue the learned Commissioner:

(a) posed the question that whether there has been a repudiation of a contract by a party to it, is objectively assessed as to whether or not that party evidenced an intention to longer be bound by the contract;

(b) applied relevant principles as discussed in Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 and referred to the observation of Hargrave J citing and applying observations of Ross J in Whittaker v Unisys Australia Pty Ltd [2010] VSC 9; (2010) 26 VR 668;

(c) concluded that, for the appellant to have repudiated the contract of employment, there must have been an act or omission inconsistent with the performance by the appellant of his contract of employment, and an acceptance of that repudiation by the respondent;

(d) found that the appellant did not convey to the respondent that he no longer intended to be bound by his contract of employment.  Rather, the appellant conveyed to the respondent that he wished to perform his duties from a different location or alternatively, take leave until such time as the requirement to be vaccinated was revoked;

(e) found that the various communications between the respondent and the appellant over the period February to March 2022 were consistent with the respondent dismissing the appellant given his inability to meet the inherent requirements of his contract of employment; and

(f) found that the appellant was dismissed at the initiative of the respondent for those reasons.

21      Accordingly, the respondent’s jurisdictional challenge failed.  As to the merits of the appellant’s unfair dismissal claim, the learned Commissioner concluded and found as follows:

(a) that, contrary to the appellant’s contentions, his contract of employment, which included the respondent’s Conditions of Employment, were able to be varied from time to time;

(b) that the appellant had a common law duty to follow lawful and reasonable directions given to him by the respondent;

(c) that the respondent, in order to ensure the safety and health of its workforce, was required to take reasonable steps to control the risk of COVID-19 in the respondent’s premises and client workplaces as far as reasonably practicable;

(d) that the respondent’s COVID-19 policy was reasonable and was an appropriate response in the circumstances;

(e) in relation to the appellant’s request to work remotely, it was accepted that given the nature of his position, and his duties and responsibilities, that it was not always practicable to work remotely and the direction to the appellant to be vaccinated in accordance with the COVID-19 policy was a reasonable and lawful direction made under the appellant’s contract of employment;

(f) in terms of time for compliance, there was a significant period of time between the date on which the COVID-19 policy was announced and the date of the termination of the appellant’s employment on 6 April 2022.  There was sufficient time over this period for the appellant to be either vaccinated or to obtain a valid medical exemption;

(g) as to the assertion of the appellant that the respondent failed adequately to consult with him, there was consultation on the impact of the respondent’s COVID-19 policy on employees including the appellant, having regard to the operational requirements of the employer and there was no failure to comply with State occupational health and safety legislation; and

(h) on the evidence the appellant failed to comply with the respondent’s COVID-19 policy and his refusal to comply with the policy was a valid reason for the appellant’s dismissal and the appellant was not ready, willing and available to undertake the requirements of his position as a Relationship Manager.

22      For the above reasons, the learned Commissioner dismissed the appellant’s application.  The appellant now appeals to the Full Bench.

The grounds of appeal

23      The appeal grounds are as follows:

Ground 1 - That the Commissioner erred in fact and law by failing to consider the evidence and submission that the Respondent, in terminating the Applicant's employment, did not follow its own procedures.

Ground 2 - That the Commissioner erred in fact and law by finding that the Roman Catholic Bishop of Bunbury (RCBB) did not breach its Occupation Safety and Health obligations, and erred in fact by finding that the Applicant did not expand on his submission that the RCBB did not comply with the consultation requirements of the OSH Act.

Ground 3 - That the Commissioner erred in fact and law failing to take into consideration the entire factual matrix.

Ground 4 - That the Commissioner erred in fact and law by misrepresenting the requirements of the Policy.

Ground 5 - That the Commissioner erred in fact by finding that there was sufficient consultation on the impact of the COVID-19 policy on the Applicant’s situation.

Ground 6 - That the Commissioner erred in fact and law by neglecting the fact that the Respondent failed to establish that the alleged specific misconduct took place.

Ground 7 - That the Commissioner erred in fact and law by failing to give adequate consideration as to whether the Dismissal was harsh, unjust, unreasonable and/or disproportionate.

Approach to the appeal

24      In Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595, as to the nature of an appeal from a discretionary decision I said at [12]:

Given that the three appeals before the Full Bench arise from a discretionary decision of the Commission at first instance, the well-known principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply.  That is, it is not sufficient for an appellant to persuade the Full Bench that it should reach a different decision to that of the learned Commissioner.  It is necessary that the appellant establish an error in the exercise of the Commission’s discretion, such as the learned Commissioner acting upon a wrong principle; making (sic) a material mistake in relation to the facts; failing to take into account relevant considerations or taking into account irrelevant considerations; or allowing extraneous or irrelevant matters to affect his decision making:  Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2003) 203 CLR 194.  Kirby J in Coal and Allied at par 72, emphasised that an appeal court, considering an appeal from a discretionary decision, should proceed with appropriate caution and restraint.

Principles in relation to unfair dismissal

25      It is also well settled in this jurisdiction, that the test as to whether a dismissal is harsh, oppressive or unfair is a broad one of industrial fairness.  In Scott v Consolidated Paper Industries (WA) Pty Ltd ((1998) 78 WAIG 4940 I said at 4943:

The law in this jurisdiction is well settled in relation unfair dismissal.  It must be demonstrated that there has been an abuse of the employer’s right to dismiss an employee, such that the dismissal is rendered harsh or oppressive:  Miles v The Federated Miscellaneous Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385.  It is also established that it is not for the Commission to assume the role of the manager in considering whether the dismissal is or is not unfair.  The test is an objective one in accordance with the Commission’s duty pursuant to s 26(1)(a) and (c) of the Act.  Moreover, contemporary standards of industrial fairness require in my view, that before an employee is dismissed, the employee be given some fair warning that his or her employment is at risk if his or her performance or conduct does not improve as required by the employer.  This requires more than a mere exhortation to improve and should place the employee in the position of being in no doubt that their employment may be terminated, unless they take appropriate remedial steps:  Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635.  It should be emphasised that whether an employee is afforded procedural fairness is but one factor for the Commission to consider, however it may be a most important factor, depending upon the circumstances of the particular case:  Shire of Esperance v Mouritz (1991) 71 WAIG 891.  It follows however, that a dismissal will not necessarily be unfair in the event of procedural unfairness alone, as all the circumstances need to be considered.

Contentions of the parties

Ground 1

26      The appellant referred to the Grievance Procedure set out at cl 20 of his Conditions of Employment document, which was annexure NM2 to his witness statement:  AB91.  The Grievance Procedure was as follows:

20. GRIEVANCE PROCEDURE

20.1 A grievance is any matter that an employee believes to be unjust or unfair or seeks to bring to the attention of the Vicar General or the Financial Administrator.

20.2 Any grievance is to be notified to the Vicar General or the Financial Administrator either verbally or in writing.

20.3 The Vicar General or the Financial Administrator is to respond to the matter within two working days.

20.4 The employee may approach the Bishop if they are not satisfied with the response of the Vicar General or the Financial Administrator.

20.5 If the matter cannot be resolved by the Vicar General, Financial Administrator or appointed agency, the employee may approach the Office for Employment Relations.

20.6  Of (sic) the matter cannot be resolved by the Office for Employment Relations, the employee may request that an agreed mediator be appointed to assist with the resolution of the matter.

20.7 If the matter cannot be resolved by the agreed mediator, then the employee may request that an agreed independent arbitrator be appointed to determine the matter.  The decision of the Independent arbitrator will be binding on both the employer and employee.

27      The appellant contended that on 25 March 2022 he wrote to Mr Ogilvie and requested that the dispute as to the operation of the policy be dealt with in accordance with the Grievance Procedure:  AB176-177.  By letter dated 28 March 2022, Mr Ogilvie replied to the appellant and noted that throughout January to March 2022, through extensive written and oral communication, the respondent did not consider that recourse to mediation under cl 20.6 of the Grievance Procedure would be practical, given the ‘intractability’ of the issues involved, and the ‘diametrically opposed positions of you and the Diocese’.  The respondent then offered the option of two possible arbitrators to deal with the dispute from whom the appellant could choose one, within two days of the date of the letter.  The appellant contended that under the Grievance Procedure it was for the appellant, as the employee to request arbitration, and not for the respondent to offer it.  Furthermore, within a few days of the letter, whilst the appellant was seeking legal advice in relation to the respondent’s offer, the appellant’s employment was terminated by the respondent.

28      The appellant contended that the learned Commissioner failed to deal with these issues in her decision. It was submitted that the non-compliance by the respondent with the Grievance Procedure, taken alone, made his dismissal harsh, oppressive and unfair.

29      Additionally, the appellant referred to the respondent’s COVID-19 policy, a copy of which was at annexure NM9 to the appellant’s witness statement (AB103-104).  In particular, the appellant referred to that part of the policy dealing with ‘Refusals and Exemptions’ which was in the following terms (AB104):

Refusals and Exemptions

Action taken in relation to unvaccinated employees will depend upon their circumstance, including whether or not it involves:

• refusal to comply with a lawful and reasonable direction;

• a medical exemption;

• an employee who is subject to State Government mandated occupations; or

• an employee who is affected by a lockdown or similar restrictions

Action taken in these circumstances will be subject to the WA Industrial Relations Commission (Acts and Regulations subject to its jurisdiction), and involve consultation between the employee and their supervisor and may result in the employee:

• working from home (if agreed or directed);

• being redeployed to another area; or

• taking annual or long service leave.

30      As to this matter, the appellant contended that whilst the learned Commissioner acknowledged at [58] of her reasons that reference was made to the three alternatives under the second paragraph of this part of the policy, the appellant complained that she did not deal adequately with the question of leave, in particular the evidence and arguments put as to whether the appellant could take long service leave as a reasonable ‘adjustment’.  The appellant referred to his request to the respondent on 8 March 2022 to take a period of long service leave commencing on 23 March 2022 and concluding on 8 July 2022.  He submitted that the respondent replied to his request on 18 March 2022 in its ‘Show Cause’ letter (see annexure NM46 AB169-170), in which the respondent stated that the appellant’s request could not be accommodated within its operations at short notice.  The appellant contended that the learned Commissioner failed to make a finding as to whether this refusal to grant his request to take long service leave was consistent with the above ‘Refusals and Exemptions’ part of the policy.  The appellant argued that if it is the case that the alternative of taking long service leave was not ‘exhausted’, but rather just refused, then he submitted that the respondent had failed to comply with its own procedures and act according to its own procedures and, accordingly, his dismissal must be held to be harsh, oppressive and unfair.

31      On behalf of the respondent, it was submitted that the appellant’s overall complaint that the learned Commissioner’s reasons failed to take into account or properly take into account relevant and material facts and submissions, was without merit.  It was submitted that there was no obligation on the Commission to refer to every piece of evidence and every submission put by the parties in the proceedings, in reliance upon Mount Lawley Pty Ltd v Western Australia Planning Commission (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; Director General, Department of Education of Western Australia v State School Teacher’s Union of Western Australia (Incorporated) [2020] WAIRC 00927; (2020) 100 WAIG 1493.  The respondent submitted that the learned Commissioner’s reasons for decision adequately set out the matters for determination, made appropriate findings and the conclusions that she reached were available to be reached on the evidence.

32      Specifically as to ground 1, it was submitted by the respondent that the allegation that the respondent did not comply with the Grievance Procedure was wrong.  It was submitted that over the period from at least 25 January 2022 (when the policy was announced) up until the termination of the appellant’s employment on 6 April 2022 the appellant was ‘promoting and airing his dissatisfaction and prevaricating about the implementation of the COVID-19 policy in the respondent’s workplace’ (respondent’s submissions at [2.1]).  It was contended that over this time, a period of approximately two and a half months, there was constant communication between the appellant and the respondent about the appellant’s concerns regarding the COVID-19 policy and those issues were canvassed at length.

33      Furthermore, the respondent submitted that, at [68] to [71] of her reasons for decision (AB44), the learned Commissioner referred to the appellant’s assertion that there was not proper and genuine consultation and rejected that contention.  This was based on the extensive correspondence between the parties which took into account the appellant’s circumstances, and the operations of the respondent and the wellbeing of its other employees and customers.

34      As evidence of the respondent affording the appellant ample opportunity to comply with the COVID-19 policy, the respondent submitted that the appellant could have easily consulted a medical practitioner at an early stage, including about 18 practitioners who practiced at medical centres close to where the appellant lived, but instead the appellant delayed this until 8 April 2022, in the face of possible dismissal, because of the appellant’s ‘self-imposed requirement to consult only a particular doctor who was “Catholic”’ (transcript at first instance pp 22-28).

Ground 2

35      This ground asserts that the learned Commissioner erred in not finding that the respondent failed to comply with its occupational safety and health obligations.  Furthermore, the appellant submitted that the learned Commissioner erred in finding that the appellant did not expand on his submissions in relation to complying with the consultation obligations under occupational safety and health legislation.  The appellant submitted that the learned Commissioner conflated the obligation to consult in relation to occupational safety and health legislation, with the general communication between the parties following the announcement of the policy in late January 2022.

36      Additionally, in relation to the failure to expand on his submissions regarding compliance with the occupational safety and health legislation, the appellant contended that the learned Commissioner erred in this conclusion.  He submitted that he raised at first instance, the decision of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059.  The appellant submitted that this case addresses the requirements in relation to genuine consultation concerning occupational health and safety matters and the appellant did explore this issue before the Commission.  The learned Commissioner erred on the appellant’s submission, by failing to take this into account and furthermore, by failing to consider whether the respondent did meet its obligations in this regard.

37      The respondent submitted that the appellant’s submissions in this regard were misconceived.  Firstly, the contention was advanced that there was no evidence before the Commission upon which such findings could be made.  Secondly, the respondent submitted that the Mt Arthur Coal decision is distinguishable on its facts and bears no relation to the issues in dispute between the appellant and the respondent.  The respondent contended that the learned Commissioner made no error in this respect.

Ground 3

38      This ground asserts that the learned Commissioner erred in fact and law by not considering ‘the entire factual matrix’.  The assertions in this ground are broad and generalised.  It is first put that it was necessary for the Commission, in considering whether the employer had a ‘valid reason’ to terminate the appellant’s employment, to make relevant findings which include ‘consideration of the entire relevant factual matrix’.  In this respect the appellant referred to [25] of his outline of submissions at first instance which listed a number of grounds upon which the appellant relied to contend that the respondent’s COVID-19 policy was not a lawful and reasonable direction.  In order to understand the assertions put by the appellant I repeat the terms of [25] of his written outline of submissions at first instance which are at AB207-208.  It is as follows:

25) The Applicant contends that when examining reasonableness in the context of the vaccination policy, the evidence will show that:

a) The contract of employment does not provide the Respondent with the right to introduce and amend its policies from time to time, including a requirement for mandatory vaccination;

b) The scope of the relevant public health order did not apply to the Applicant's position;

c) Health and safety considerations advanced as a justification for the imposition of a mandatory COVID-19 vaccine requirement as an appropriate control measure was mistaken;

d) The Respondent failed to consider any reasonable adjustments to be vaccinated against COVID-19, allowing the Applicant to work remotely, take leave or allow the employee to work at different times or on different shifts;

e) The Covid policy was in direct contradiction and inconsistent with other policies;

f) The tight deadline imposed by the Respondent’s Covid-19 Vaccination Policy was impossible to meet;

g) There was no meaningful consultation prior to introducing a mandatory vaccination policy.  In particular, to the extent that the Policy relied on OSH obligations, the consultation requirements under the Occupational Safety and Health Act 1984 (WA) were not complied with;

h) The requirement to provide immunisation status, which contained sensitive health information, ignored obligations under the Privacy Act 1988 (Cth), particularly relating to solicitation of, consent for, and safeguarding of, that information;

i) The direction to be vaccinated was developed having scant regard to the specific circumstances of the workplace; and

j) The direction to be vaccinated lacked a clear, understandable and logical basis.

39      It was submitted by the appellant that the learned Commissioner conflated the grounds relied upon by him at [25(b)] and [(c)] and failed to deal with the former allegation in her reasons for decision when listing the factors relied upon by the appellant at [38] of her reasons (see AB40-41).  It was submitted by the appellant that whether or not he was subject to the State Government health directives in terms of vaccine mandates, was neither considered nor determined by the Commission.  It was submitted that on both the appellant’s evidence and the respondent’s evidence the appellant was not so subject.

40      Furthermore, the appellant contended that the learned Commissioner failed to have any regard to the terms of [25(e)] set out above, in relation to the respondent’s existing policies regarding inoculation and immunisation.  It was submitted that the appellant’s conduct was consistent with this policy and the Commission erred in not paying any regard to it.  Another allegation made as to this ground was that the Commission failed to give any consideration to the appellant’s evidence that he intended to consult with his own doctor in relation to the question of vaccination.  Specifically, the appellant contended that his evidence was he was unable to obtain an appointment with his doctor until 8 April 2022, and he had informed the respondent accordingly.  The appellant contended that consideration of this evidence was necessary to establish whether or not the appellant had ‘refused to comply’ with the respondent’s policy, as found by the learned Commissioner.  The appellant contended that this was a matter that went to the fairness of his dismissal.

41      Two other matters are raised under this ground of appeal.  The first is that the Commission paid no regard to his lengthy period of unblemished service with the respondent.  The second matter raised was the operation of the respondent’s Grievance Procedure and the assertion by him that it was cut short, contributing to the unfairness of his dismissal.

42      As to this ground, and the various points contended by the appellant in relation to it, the respondent’s submission was that the assertions made by the appellant were broad and subjective and merely repeat the general assertions made by him in support of his claim at first instance.  Furthermore, the alleged summary of ‘agreed facts’ set out in the appellant’s written outline of submissions were contested and it was submitted that no such agreed facts were before the learned Commissioner. In short, the respondent submitted that the attempt by the appellant to particularise his complaints as set out in ground 3, overlooks the overall context and rationale of the decision of the Commission to dismiss the appellant’s application.

Ground 4

43      As to this ground the appellant contended that the Commission misrepresented the requirements of the respondent’s COVID-19 policy.  It was submitted that given the announcement of the policy being made on 24 January 2022, and the requirement for him to be double vaccinated by 31 January 2022, was not possible to be achieved.  Whilst the learned Commissioner concluded that, given the overall period of time between the announcement of the policy and the termination of the appellant’s employment, ample time was provided for the appellant to be either vaccinated or to obtain a valid medical exemption, the appellant contended that this was not a finding relating to the specific terms of the policy itself.  It was submitted that the time frame set out in the policy, was inconsistent with then State Government health directives in relation to time periods for vaccine mandates and relevant public health advice in relation to intervals of time between first and second vaccinations.  Accordingly, the appellant submitted that the learned Commissioner was in error in not taking these matters into account in determining whether the respondent’s direction was both lawful and reasonable in all of the circumstances.

44      Another point advanced by the appellant in relation to this ground, was that the Commission’s findings at [78] and [79] of her reasons (see AB45), to the effect that the appellant did not provide his ‘vaccination status’ or a medical exemption, was in error.  The appellant contended that it was common ground that as early as 25 January 2022, the appellant had provided his vaccination status (i.e. he was unvaccinated) and he asserted that he never withheld this from the respondent.  The appellant submitted that the policy required him to provide evidence of his vaccination or of a valid medical exemption and he informed the respondent that he was in consultation with his doctor, as a precursor to providing such advice.

45      In response, the respondent contended that there was no such error by the Commission as asserted by the appellant.  It was submitted by the respondent that the reality of the situation was that the appellant had about two and a half months to either be vaccinated or to obtain a valid exemption, under the respondent’s policy.  During the course of this time, the respondent submitted that the appellant ‘dragged his heels, ducked and dived and put up every possible obstruction to complying with the respondent’s COVID-19 policy’ (respondent’s submissions at [52]).  The respondent submitted examples of this course of conduct and behaviour included that the moment the respondent’s policy was announced, the appellant immediately obtained a medical certificate from his doctor leading to him being off work from 27 January to 14 February 2022.

46      It was submitted the speed with which the appellant moved to consult his doctor for this purpose, stood in stark contrast to the time taken by the appellant to arrange an appointment with his doctor to discuss the respondent’s vaccination policy.  Secondly, when the respondent wrote to the appellant on 8 March 2022, indicating that it hoped the appellant would confirm his position and that his continued absence from the workplace, which was a small office, was placing a significant burden on the other staff, and the appellant being directed to take annual leave from 9 March 2022 to 22 March 2022 to provide him an additional period to comply with the policy, the appellant’s immediate response was to request long service leave from 23 March 2022 to 8 July 2022.

Ground 5

47      As to this ground, the appellant submitted that the learned Commissioner erred when she found that there had been sufficient consultation between the respondent and the appellant as to the impact of the COVID-19 policy on him.  In this respect, the appellant referred to [71] of the learned Commissioner’s reasons, where she concluded that there was consultation with the appellant about the impact of the policy on him in addition to considering the respondent’s operations and the safety and wellbeing of all of its employees and customers.  The complaint of the appellant was that at an early stage, in early March 2022, he informed the respondent of his doctor’s appointment to discuss the policy and this advice was not considered by the respondent.  The appellant contended that therefore, this showed that any consultation by the respondent with the appellant was not genuine.

48      For the respondent, it was contended that the appellant’s reliance upon the decision in Mt Arthur Coal regarding consultation obligations was not relevant.  It was submitted that the facts in that case were starkly different to those in this matter, and concerned the terms of enterprise agreements between the employer and its employees and the consultation process set out therein.

Ground 6

49      As to this ground, the appellant contended that the learned Commissioner erred in failing to conclude that the respondent had not established that the alleged misconduct of the appellant, had in fact taken place.  It was submitted that whilst the respondent’s letter of termination of employment dated 6 April 2022 referred to the appellant’s ‘repudiation’ of his contract, this was not the case.  Furthermore, the appellant contended that whilst he was, at the time he was dismissed, ‘noncompliant’ with the respondent’s policy, this had been the case since the end of January 2022 and at no time did he tell the respondent that he had ‘no intention’ of being vaccinated or complying with the respondent’s policy, and this was consistent with the respondent’s own evidence.  Accordingly, it was asserted by the appellant that the respondent had not established that he had no intention of complying with the policy and the learned Commissioner erred in not so concluding.

50      The respondent’s submission as to this ground of appeal was that the conclusion reached by the Commission, that the appellant failed to comply with the lawful and reasonable direction contained in the policy, was one that was well open on the evidence.  As to the assertion by the appellant that he never stated, in terms, that he ‘was refusing to comply’ with the policy, the respondent’s submitted that this completely disregards the body of evidence before the Commission as to the lengthy process undertaken over some two and a half months where there was no attempt by the appellant to even commence complying with the policy.  The respondent submitted that the evidence established that at every point, the ‘appellant threw in a new technicality to thwart the respondent’s process including in the end, attempting to impose long service leave on a small workplace without reasonable notice’.

51      The respondent submitted that the learned Commissioner made no error in her ultimate conclusion on the basis of the evidence before her.

Ground 7

52      In relation to this final ground of appeal, it was the appellant’s contention that the Commission did not consider properly whether his dismissal was harsh, unjust, unreasonable and/or disproportionate. This was particularly related to the question of the timing of the appellant’s dismissal, in that the appellant submitted that he was dismissed some two days prior to the date of his appointment with his doctor on 8 April 2022.  It was asserted by the appellant that the pre-emptive dismissal by the respondent precluded him from consulting with his doctor in relation to matters concerning the respondent’s policy.

53      Furthermore, the appellant contended that his dismissal, prior to the completion of the formal Grievance Procedure, was harsh and unreasonable.  This included, according to the appellant, the respondent’s refusal to engage in mediation with the appellant.  The appellant also submitted that the learned Commissioner failed to find whether or not the respondent’s rejection of the appellant’s request to take long service leave and his lengthy period of unblemished service, rendered his dismissal harsh oppressive and unfair.

54      In response, the respondent asserted that, taken in the context of the learned Commissioner’s reasons overall, the appellant was given a ‘fair go’.  There was nothing unfair about the process engaged in by the respondent, which led to the termination of the appellant’s employment.  Insofar as the reasons of the learned Commissioner were concerned, the respondent submitted that all relevant and material facts were considered, and the Commission correctly found that the appellant’s dismissal was not unfair.

Consideration of appeal grounds

Ground 1

55      There is considerable overlap between the various grounds of appeal. I have endeavoured to consider the key contentions of the appellant in relation to each ground.

56      The appellant’s Conditions of Employment were under cover of a letter of offer dated 1 February 2008.  The content of the Conditions of Employment document is similar to an industrial agreement. It contains many common employee entitlements such as hours of work, leave benefits, allowances and other matters. The Grievance Procedure is set out above at [26].

57      The evidence of the appellant was that in response to the ‘show cause’ letter from the respondent dated 18 March 2022, the appellant requested and received a copy a copy of his Conditions of Employment which contained the Grievance Procedure on 22 March 2022. He said he was not aware of its existence.  In an email to Mr Ogilvie, the appellant requested that the dispute in relation to his compliance with the COVID-19 policy be referred to the ‘Office of Employment Relations’ at the Australian Catholic Bishops Conference. It was Mr Ogilvie’s evidence that on receiving the appellant’s request, he made enquiries, and he was informed by the Bishop’s Conference, that the Office of Employment Relations no longer existed.  Accordingly, it was recommended that the parties proceed to the next stage, that being a request for an agreed mediator to mediate the grievance (see p 137 transcript).

58      In response to this, Mr Ogilvie wrote to the appellant again on 28 March 2022 (see AB179).  In his letter, Mr Ogilvie informed the appellant that:

Given the exhaustive discussion through emails and meetings in January and March, and the intractability of the issues involved, the implementation of clause 20.6 will be clearly impractical given the diametrically opposed positions of you and the Diocese.

59      Mr Ogilvie confirmed this position in his testimony, where he said that the parties had in effect been mediating the issues for some time without success and that the respondent considered that any referral to mediation would be futile, and a waste of time and money, which was why the respondent declined the appellant’s request (pp 137-138 transcript).  It was in response to this situation, that the respondent proposed an arbitration of the grievance under cl 20.7 of the Grievance Procedure. The respondent proposed to nominate two possible arbitrators by 30 March 2022 and invited the appellant to nominate an arbitrator by 29 March 2022.  Whilst the Grievance Procedure is silent on the issue of costs, the respondent undertook to pay reasonable costs of the arbitration proceedings.  The procedure is also silent on the process of nomination of an arbitrator however there would seem to be no barrier to either party doing so.  The respondent did not nominate two possible arbitrators by 30 March 2022.

60      In response, the appellant by an email dated 29 March 2021 to Mr Ogilvie, requested a further three days to nominate a possible arbitrator.  In response the respondent gave the appellant a further one day to Wednesday 30 March 2022, being a total of two and a half days (see AB180-181).  On the same day the appellant sent an email to Mr Ogilvie.  In it, he said that he:

[W]ished to clarify that my request for consideration under the contractual Grievance Procedure, was to suggest the initiation of mediation rather than arbitration.  I am therefore advising that at this stage I do not consent to the appointment of an independent arbitrator.  I believe that mediation ought to be the next step taken with a view to resolve the matter.

61      The appellant again repeated his request to proceed on long service leave.  (See AB182). By way of reply letter, the next day on 30 March 2022, Mr Ogilvie informed the appellant, relevantly, as follows:

However, it is clear from the meetings, in January and March and the exchanges of twenty four emails over the past two months that the Diocese consultation with you has been to no avail.  Hence the mediation you have requested under paragraph 20.6 of the Conditions of Employment would be a waste of time and money and a fruitless exercise in all these circumstances.

The Diocese does not therefore agree to mediation.  The Diocese considers that resolution by determination of an independent arbitrator under paragraph 20.7 is the only realistic and common sense way to deal with the impasse.  The CDF forecast in the last two months shows the diocesan income will drop significantly because its portion of overall customer investments in the partnership has not kept up with those of Melbourne and Sale.  This is not a criticism of your own work in these strange times but a warning to the Diocese that both present customer relations need to be strengthened and new potential customer investments pursued.

62      A little later, on 31 March 2022 the appellant again restated his request for mediation, proposing that this time it be through the Industrial Relations Commission.  In his email to Mr Ogilvie, the appellant asserted that in accordance with the Conditions of Employment, the engagement of an arbitrator was at the employee’s request and not that of the employer.  Furthermore, the appellant asserted that the respondent had no capacity under the Grievance Procedure to elect not to refer the dispute to mediation. On Friday 1 April 2022, the respondent again replied to the appellant, reiterating that it did not agree to mediation, and sought clarification as to whether the appellant had refused the respondent’s offer of arbitration, by no later than Monday 4 April 2022.  On that date, a firm of solicitors acting for the appellant, wrote to Mr Ogilvie by email and advised him that they were taking instructions from the appellant as to a possible arbitration and that they were hopeful to meet to discuss the issue with him that afternoon (see AB185-189).

63      There was some evidence about this communication.  Mr Ogilvie testified in cross-examination that, by this stage, the respondent wished to move the process quickly given what had occurred in the prior month.  Mr Ogilvie said that the appellant was, at that time, on paid special leave and had no work to do for the respondent. This situation continued for about a week. Accordingly, the respondent took the view that the appellant had ample time to find and nominate an arbitrator (see p 143 transcript).

64      Specifically, as to the contact from the solicitor, Mr Ogilvie testified that he received an unsolicited telephone call from the solicitor on the morning of 4 April 2022, prior to receiving the email referred to above.  Mr Ogilvie testified that this telephone call came directly to him on his direct line, which could only have been provided by the appellant.  Mr Ogilvie testified that the solicitor requested a three-way telephone conference involving the appellant. In the circumstances, Mr Ogilvie said that he found this quite unprofessional and rude.  He said that he informed the solicitor that the respondent had its own legal advice and had retained solicitors.  When being informed of this, Mr Ogilvie testified that the solicitor he was talking to promptly hung up, shortly after which, he received the email from the solicitor.  Mr Ogilvie said that he did not respond to the solicitor’s email of 4 April 2022.  Mr Ogilvie also testified that he did not forward the solicitor’s email to the  respondent’s solicitors as was requested by the solicitor who contacted him, and he ignored it (see p 142 transcript).

65      The tenor of Mr Ogilvie’s testimony was that the matter in the respondent’s view, had dragged on, the appellant was just ‘kicking the issue down the road’ and that the respondent had decided in the interests of the organisation as a whole, to not wait any longer.  A decision had to be made (see pp 140-142 transcript). In this regard, I refer to the evidence of Mr Ogilvie that at an early stage in the dispute between the appellant and the respondent regarding his compliance with the COVID-19 policy, staff were under pressure in covering for his absences in what was a small office, and were anxious as to the ongoing uncertainty the situation was causing (see p 134 transcript). Mr Ogilvie did not dispute that the Grievance Procedure was still underway at the time the appellant was dismissed (see p 142 transcript).

66      The appellant’s evidence on this matter was that he sought advice from a solicitor on 4 April 2022. This led to the telephone call on the same day, to Mr Ogilvie, referred to above, followed in turn by the email from the solicitor to Mr Ogilvie (see AB72).  The appellant’s evidence was that he was not able to meet with the solicitor until the following day, on Tuesday 5 April 2022.  He said that he anticipated responding to the respondent the next day that being on Wednesday 6 April 2022.  However, on that day, he received the letter from Mr Ogilvie of the same date, held by the learned Commissioner to have been his letter of dismissal.

67      In both his particulars of claim and in his closing submissions, the appellant raised the issue of the respondent’s failure to comply with the Grievance Procedure, in particular, by dismissing him before the Grievance Procedure had been completed (see AB53-55; 208 and pp 160 and 164 transcript).

68      The question of compliance with the respondent’s Grievance Procedure was part of the appellant’s claim and part of his case at first instance, as a basis upon which he asserted that his dismissal was harsh, oppressive and unfair.  However, the learned Commissioner did not deal with this aspect of the appellant’s claim, in her reasons for decision.  There is no obligation on a court or tribunal to deal with every submission made, or all of the evidence led in proceedings, and nor do reasons for decision need to be lengthy or elaborate. In Director-General Department of Education as to this, I observed as follows at [51] to [53]:

51 In a recent decision of the Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 Quinlan CJ, Murphy and Beech JJA summarised the legal principles as to the adequacy of a judge’s reasons at [112]:

Adequacy of reasons for decision:  legal principles

112 Principles relevant to an evaluation of the adequacy of reasons include the following:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is not necessary to refer to every submission advanced by a party.  However, a tribunal or court must engage with the central element(s) of a losing party’s case and explain why that case fails.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence.  An appellate court may take into account what can legitimately be inferred from the reasons.  Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge’s or tribunal’s consideration.

52 (See too Mt Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 at 409 – 410; Bucu v Midland Brick Co Pty Ltd (2002) 82 WAIG 743; Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913)

53 In Marshall, McClure JA referred to the obligation on a judge to give reasons and at [247] - [249] and said:

Adequacy of reasons

247  The trial Judge was under a duty to give reasons.  In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons:  Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J.  The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful.  It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured:  Garrett v Nicholson at 248.

248  However, reasons need not be lengthy and elaborate nor do they require reference to all of the evidence led in the proceedings or every submission advanced by the parties:  Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [28]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

249  Further, as the Full Court stated in Mount Lawley Pty Ltd v Western Australian Planning Commission at [29], inadequacy of reasons does not necessarily amount to an appealable error; an appeal court will only intervene when the inadequacy or insufficiency in the reasons are such as to give rise to a miscarriage of justice.

(Footnotes omitted)

69      The giving of reasons enables parties to proceedings to understand the basis for a court or tribunal’s decision and that matters raised and argued have been understood and considered: Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 at 279 per McHugh J.

70      In my view, the learned Commissioner was in error in not engaging with this issue in her reasons.  It was a significant part of the appellant’s case that his dismissal was procedurally unfair, having regard to the respondent dismissing him in the course of his exercise of his right of access to the Grievance Procedure, as a part of his terms and Conditions of Employment.  It is unknown what the outcome of this process may have been because the process was truncated by the appellant’s dismissal.

71      As I have observed above at [25], whilst procedural fairness is as factor to consider in a claim of unfair dismissal, and it may be a most important factor, all the circumstances of the case need to be considered in the context of whether overall, an employee has received a fair go all round.  In this case, the appellant had an entitlement as a condition of his employment, to a Grievance Procedure that he invoked, and it was not left to run its course. The respondent enabled the procedure to move forward, as it was obliged to do, but then terminated the process without warning.  This was procedurally unfair, despite the obvious level of frustration that the respondent had by this time. The appellant was entitled to get legal advice, as did the respondent.  This limb of ground 1 is made out.

72      The second limb to ground 1 was an allegation by the appellant that the respondent failed to comply with the COVID-19 policy.  I have set out the terms of the policy above at [3].  The appellant focussed on that part of the policy dealing with ‘refusals and exemptions’.  It was part of the appellant’s case at first instance that the respondent did not consider ‘reasonable adjustments’ that would have enabled him to work remotely; take leave or permit different working times or work locations from other employees (see [38c] reasons at first instance).  The learned Commissioner under the heading ‘Adjustments’ in her reasons commenced at [58] and concluded at [64] in dealing with these issues.  Under the heading ‘Background and Facts’ at [14], the learned Commissioner referred to the appellant’s request to take a period of long service which he made on 8 March 2022.  The period of leave requested was from 23 March 2022 to 8 July 2022 inclusive.  She referred to the appellant’s rationale for making this request as the respondent’s ‘unreasonable refusal to consider ‘work-from-home’ and ‘implied threat of the potential loss of employment’.

73      The appellant referred to this issue in his evidence in chief (see AB73).  Furthermore, the appellant referred in his evidence to sending an email to Mr Ogilvie on 8 March 2022 requesting long service leave, and relying upon the matters referred to by the learned Commissioner in her summary of the facts at [14] of her reasons. There was no immediate response to this request by Mr Ogilvie in his reply, also on 8 March 2022 (see AB154-155).  The appellant raised the matter of him taking long service leave again directly with the respondent by email of 15 March 2022 (see AB158 and 162).  The appellant also referred to his general approach to the question of vaccines in this correspondence with the respondent (see AB160).

74      The respondent replied to the appellant in an email of 17 March 2022, in which he canvassed generally the issues raised by the appellant in his email of 15 March 2022.  In relation to the various proposals raised by the appellant (which included a request to take long service leave), the respondent indicated that ‘Your proposals for compromise to date have not been real compromises because they do not include fulfilling all the responsibilities of your contracted role’ (see AB164).  On any view, coming from the respondent directly, this constituted a rejection of his proposal to take long service leave. This was clearly communicated to the appellant a little later in the respondent’s ‘show cause’ letter to the appellant dated 18 March 2022 (see AB169-170).  In the letter, Mr Ogilvie, on behalf of the respondent, rejected the appellant’s request for long service leave because of the short notice to take such a period of leave, and the respondent’s inability to accommodate it.

75      There was also evidence given by Mr Ogilvie that the appellant’s request to take long service leave at short notice was not reasonable (see AB236).  In cross-examination of the appellant the issue was also raised (see pp 27-28; 42-43 transcript at first instance). Additionally, in his cross-examination, Mr Ogilvie testified as to this issue and said the respondent did consider his request and Mr Ogilvie discussed the matter with the respondent. It was Mr Ogilvie’s evidence that he refused the appellant’s request in consultation with the respondent (see p 149; p 151 transcript).

76      It is the case that in his closing submissions to the Commission, the appellant asserted that the respondent’s refusal to grant him long service leave was contrary to the COVID-19 policy, and was a further basis upon which his dismissal was harsh, oppressive and unfair (see p 160; p 164 transcript).

77      A fair reading of the learned Commissioner’s reasons at [58] to [64], reveals that whilst she considered the alternative working arrangements proposed by the appellant, there was no consideration or finding in relation to the appellant’s allegation that the respondent failed to comply with the COVID-19 policy by ‘exhausting’ the option of him taking long service leave prior to the termination of his employment.  In my view the learned Commissioner was in error in not making such a finding.

78      However, on the basis of all of the evidence, to which I have referred above, it is clear that the respondent considered that the appellant’s request to take long service leave, especially the short notice given to take it, in the context of a small working office, was not practicable nor reasonable in all of the circumstances.  This was a sound basis to refuse the appellant’s request.  It was open to find, and the learned Commissioner should have found, that this option for the purposes of the respondent’s COVID-19 policy was exhausted, and there was no contravention of the policy in this respect.

79      Whilst the learned Commissioner should have dealt with this issue, I am not persuaded that it would have made any difference to the result and no contravention of the policy by the respondent could have been established.  Therefore, this sub-ground is not made out.

Ground 2

80      The appellant maintained that the learned Commissioner failed to find that the respondent breached its consultation obligations under the Occupational Safety and Health Act 1984 (WA).  At par 25(g) of the appellant’s written submissions at first instance (see AB207) he asserted:

g) There was no meaningful consultation prior to introducing a mandatory vaccination policy.  In particular, to the extent that the Policy relied on OSH obligations, the consultation requirements under the Occupational Safety and Health Act 1984 (WA) were not complied with;

81      The appellant raised the matter of the respondent’s failure to consult under the OSH Act in closing submissions and that the respondent failed to undertake any risk analysis or consideration of alternatives (see pp 161-162 transcript).  Furthermore, in cross-examination of Mr Ogilvie the respondent accepted that there was no risk assessment undertaken, but Mr Ogilvie formed the view that none was required.  Mr Ogilvie also accepted when it was put to him in cross-examination, that the respondent did not consult with employees prior to the introduction of the COVID-19 policy (see p 126 of the transcript).

82      Insofar as the appellant relied upon the decision of the Fair Work Commission in Mt Arthur Coal the learned Commissioner referred to this decision in the context of the implied duty at common law for employees to obey lawful and reasonable directions by their employer.  Whilst this was one issue considered by the Full Bench of the Fair Work Commission in its decision, the other principal issue arising in the case was the employer’s consultation obligations under both the Work Health and Safety Act 2011 (NSW) and the relevant provisions of the applicable enterprise agreement, providing for consultation generally with employees.

83      The model health and safety law, upon which the WHS Act (NSW) legislation is based, did not come into effect in Western Australia, in the form of the Work, Health and Safety Act 2020 (WA), until 20 June 2022.  This was after the events relevant to the disposition of the present appeal. However, s 19(1)(c) of the former OSH Act, in effect at the material time, and which imposed a general duty on employers to provide and maintain a working environment, as far as practicable, free of hazards, required employers to consult and cooperate with employees at a workplace, regarding occupational safety and health. That general duty applied to the introduction of the COVID-19 policy.

84      I should add that under s 20(1) of the OSH Act, there was a corresponding duty on employees, such as the appellant, to take reasonable care for their health and safety in the workplace. Additionally, and importantly, by s 20(3), employees had a duty to cooperate with an employer in the discharge of the employer’s duties under the OSH Act.

85      On the basis of the evidence before the Commission, it would appear that the duty to consult under s 19(3) of the OSH Act was not fully discharged by the respondent. Some useful observations as to consultation obligations under occupational health and safety legislation, without being definitive, can be found in Mt Arthur Coal at [98] to [113].  Importantly though, as observed by the Full Bench of the Fair Work Commission in that case, context is important in determining the content of any duty to consult.  Factors such as the size and composition of a workplace, the nature of the change proposed and the requirement for a quick response, are relevant considerations:  at [113].

86      The learned Commissioner referred to the circumstances of the pandemic and the obligations on the respondent as an employer to ensure its employees’ health and safety in the workplace.  She referred to the control of risk and the employer’s obligation to consider effective measures both in its workplace and at the workplaces of its clients.  On this basis, the learned Commissioner considered that the introduction of the COVID-19 policy, was an effective control measure in accordance with the respondent’s occupational safety and health duties, and accordingly it was a reasonable direction (reasons at [56]-[57]).

87      To the extent that the learned Commissioner observed at [69] of her reasons, that the appellant did not expand on his submissions in relation to consultation obligations under the OSH Act, nor did the appellant testify as to these matters, and accordingly there was no breach by the respondent of its obligations, in my view that conclusion was in error.  There was sufficient submissions and evidence before the Commission to put in issue the consultation obligations of the respondent under the OSH Act, which was a general statutory duty, and evidence was unnecessary to enliven it.

88      It was admitted by Mr Ogilvie in his evidence that no such consultation occurred, having regard to the circumstances.  It is the latter point which, in my view, is critical.  Whilst on the appeal the appellant made no reference to it, sight cannot be lost of the fact that the respondent was, as was the entire community, grappling with appropriate responses to a global pandemic.  There was immense uncertainty, apprehension, and even fear in the community at the time.  This was referred to by the respondent in his communications with the staff.  Time was of the essence as the State Government had already, at the material time, implemented directions under the Public Health Act for mandatory vaccination in critical workplaces, some of which impacted on the respondent’s operations.  The respondent as an employer, as the learned Commissioner properly recognised, had a duty of care to its employees and others in its workplace, to ensure as far as practicable, their health and safety.  It was open for the learned Commissioner to conclude, and she properly concluded, that the COVID-19 policy was an appropriate and proportionate response to the circumstances applicable at the time.

89      It is clear from the evidence ,which was not in dispute, that the appellant, in his position as a Relationship Manager, was required to interact with persons in schools, aged care homes and other locations where the State Government mandates were in effect.  Those mandates required critical workers, as defined in the relevant directions, to be double vaccinated by the end of January 2022.

90      The evidence before the Commission was that the respondent, in communications with staff on 18 and 19 January 2022, raised these issues and the implications for churches and church organisations.  This included dialogue with the appellant about these matters and his stated opposition to mandatory vaccination (see AB95; 158-163). In his email to staff on 24 January 2022 introducing the COVID-19 policy (see AB100-103), Mr Ogilvie explained the policy rationale and referred to the respondent’s earlier foreshadowing of the need for a policy response.

91      Accordingly, whilst in my view the learned Commissioner ought to have explained more fully these issues in her reasons, I am not persuaded that she was in error in concluding overall that there was no breach of the respondent’s obligations under the OSH Act.  This ground is not made out.

Ground 3

92      As noted above, the appellant’s contentions as to this ground were broad, and were a restatement of many aspects of his case at first instance.  The appellant relied on, at [11] to [13] of his written submissions at first instance, two decisions of the former Industrial Relations Court of Australia and the Federal Court in relation to whether an employer had a ‘valid reason’ to terminate the employment of an employee under the former Commonwealth legislation concerning unfair dismissal.  This was an erroneous submission and it turned on the specific provisions of legislation not applicable in this jurisdiction.

93      The existence of a ‘valid reason’, for a dismissal, as a legislative requirement, forms no part of the law in relation to unfair dismissal in this jurisdiction.  The applicable test, and the approach required, is that set out above at [25].

Conflation of pars [25b] and [25c]

94      At first instance the appellant contended, as summarised at par [25b] of his written submissions, that the scope of the relevant public health order did not apply to his position. Furthermore, he maintained at [25c] in his written submissions that the respondent’s reliance upon health and safety considerations to support the introduction of its COVID-19 policy was in error.  The learned Commissioner at [38(b)] referred to both of the appellant’s contentions in this regard.  The complaint of the appellant is that the Commission did not engage with or determine the issue of whether his position was subject to the State Government vaccine mandate.  Whilst the learned Commissioner at [61] of her reasons referred to public health orders, it was in the context of the orders limiting visitors to persons who were vaccinated and an acceptance that some of the appellant’s duties involved meeting people in those circumstances.  However, the learned Commissioner did not deal with the allegation in her reasons that the public health order did not apply to the applicant’s position specifically.

95      It is important to examine the COVID-19 policy itself, and the rationale for its implementation. The policy is set out at [3] above. Under the heading ‘Background’ the policy refers to action taken by the State Government on 20 October 2021 mandating COVID-19 vaccinations for occupations considered to be critical to the ongoing functioning of the community.  The policy noted that a number of these critical occupations shared premises at the Bunbury Diocese and others are employed in related premises also operated by the respondent.  Importantly, in relation to the purpose of the policy, the policy document refers to its intention ‘To give effect to the State Government mandate’.

96      This policy language was consistent with the leadup to the introduction of the policy in communications from the respondent to the Diocese community and the status of church workers, in light of the State Government mandate (see AB95 – AB96; AB99).  The policy does not say that all staff of the respondent were covered by and subject to the State Government mandate.

97      This was the tenor of Mr Ogilvie’s evidence in cross-examination when he was asked about the policy intent.  His evidence was the purpose of the COVID-19 policy was to ‘give effect to’ the State Government mandate and to ‘line up with them’.  It was not suggested anywhere in his evidence, that the State Government mandate applied to all of the respondent’s employees.  He testified however, that some staff at the respondent were covered by the mandate, including his own position (see p 115 transcript).  As to whether the appellant was covered by the mandate, Mr Ogilvie said he did not know the answer to that question.

98      When it was put to him in cross-examination that the terms of the policy document, set out above, implied that employees of the respondent were subject to the State Government mandate, it was Mr Ogilvie’s evidence that some employees of the respondent were and some were not subject to them, and that the policy intent was not to cover any one individual employee, but to provide a broad policy statement ( see p115 transcript).

99      In re-examination, Mr Ogilvie expanded on the critical occupations covered by the mandate many of which covered organisations such as residential care, community services, mental health, child, drug, family and other health organisations and schools.  Additionally, funeral and mortuary services were also covered by the work performed by priests.  It was Mr Ogilvie’s evidence that many of the respondent’s organisation in these areas were covered by the mandate.  In relation to schools, Mr Ogilvie’s evidence was that as they were listed as critical occupation organisations, and as the applicant was required to attend schools as a part of his job, he could not do so whilst he remained unvaccinated (see p 152 transcript).

100   From all of this evidence, whilst the learned Commissioner should have engaged with and made findings in relation to this issue, as a part of the appellant’s case, it was clear that the appellant was not in a position to perform his job if he was non-compliant with the respondent’s COVID-19 policy. Whether the scope of the relevant State Government mandate did or did not apply to the appellant’s position specifically, was not strictly to the point. The point was that non-compliance with the COVID-19 policy rendered the performance of the appellant’s duties at the respondent problematic.  Given that a number of staff of the respondent were bound by the State Government mandate, coupled with the evidence to which I have just referred, only goes to confirm that the respondent’s decision to implement the COVID-19 policy was a reasonable one in the circumstances.

101   Thus, whether the appellant was covered by the State Government vaccine mandate, was not of itself, a relevant consideration in determining whether the dismissal of the appellant was unfair.  This sub-ground is not made out.

Par [25e] of the COVID-19 policy was in direct contradiction with and inconsistent with other policies

102   This sub ground was advanced by the appellant at first instance as a part of his claim that the conduct of the respondent was unreasonable, having regard to an existing immunisation policy of the respondent.  This was referred to at par [25e] of his written submissions at first instance (see AB207).  In her reasons for decision, the learned Commissioner did not engage with this issue.  It was not referred to at [38] of her reasons, when setting out the appellant’s contentions as to why the respondent’s direction was neither lawful nor reasonable.  The learned Commissioner made no further reference to this issue in her reasons for decision, when considering whether the appellant’s dismissal was unfair.

103   At first instance in relation to this contention:

(a) the appellant raised the matter as a part of his case as to the ‘reasonableness’ of the direction to comply with the respondent’s policy;

(b) it was raised in his evidence in chief in his witness statement at [4.1] (see AB59). The appellant referred to the respondent’s ‘Virus Inoculation/Immunisation Policy (2006)’ a copy of which was annexure NM4 to his witness statement (see AB94).

104   This issue was dealt with in the evidence of Mr Ogilvie, in cross-examination.  He testified that the respondent had an existing immunisation policy in place, which was revised in 2006.  His evidence was that this policy was introduced primarily in response to the influenza virus (see p 83 transcript).  Mr Ogilvie testified that the immunisation policy was further revised in September 2021 to include the word ‘coronavirus’ because this was a new issue.  His evidence was that the respondent then introduced the COVID-19 policy as a specific policy to apply in relation to COVID-19 vaccination (see pp 84-85 transcript).  Mr Ogilvie’s evidence was that it was an oversight to not correct the earlier policy and remove the reference to ‘coronavirus’, contained in it (see p 84 transcript).

105   The text of this policy is consistent with Mr Ogilvie’s evidence.  From its terms, there is reference in the section headed ‘Objective/Intent’, to its design for the workplace to be as far as practicable ‘free from virus particularly the influenza virus’.  Under the heading ‘Background’, again reference is made to the influenza virus which may affect many employees at work.  Under the heading ‘Policy’, in the first paragraph, it indicates that the respondent will pay any medical gap for an ‘influenza inoculation’ and also other necessary immunisation.  Examples such as hepatitis and tetanus are cited.  Coronavirus immunisation was added to the policy.  The policy then states that ‘The Diocese encourages employees to obtain the necessary inoculation/immunisation, however, it should be noted that the decision rests with the employee and, should be made in conjunction with the employee’s general practitioner.’

106   The issue in relation to this sub-ground of appeal is not whether (as the appellant submitted at 4.22 of his written appeal submissions) the existing immunisation policy was a sufficient control measure.  Rather, the issue at first instance was whether the respondent’s COVID-19 policy was a lawful and reasonable direction and whether the appellant, by his conduct and behaviour, complied with it.

107   The immunisation policy from its terms was a general policy which principally referred to the influenza virus. It dealt with the question of payment for inoculation and encouraged employees to obtain the necessary inoculation in consultation with their general practitioner.  The appellant’s submission was that in seeking to meet with his treating doctor, he was acting consistently with this other policy of the respondent.

108   It should be noted there is nothing in the immunisation policy that mandates that an employee must only consult with their treating doctor to decide on immunisation.  It would appear to be the case that under either policy, it would have been open to the appellant to seek the advice of any general practitioner as to either immunisation generally, or COVID-19 immunisation specifically.  It will also be relevant to consider the circumstances.  I deal further with this issue below, when considering the appellant’s next point under this ground of appeal, that the Commission failed to consider the applicant’s contention and evidence in relation to obtaining an appointment with his doctor to confer about the issue of vaccination.

109   The learned Commissioner was in error in omitting consideration of this issue in her reasons.  It was part of the appellant’s case.  However, I am not persuaded that this omission, in the context of the evidence overall, is one warranting disturbing the decision below.

The omission of consideration of the appellant’s doctors’ appointment

110   The appellant maintained that as a question of fact, the learned Commissioner erred in failing to make findings in relation to his contention that he had made an appointment with his treating doctor to get advice on the COVID-19 policy on 8 April 2022.  The proposition advanced by the appellant was that by failing to deal with this factual issue, the learned Commissioner was not able to then consider whether his dismissal, which occurred two days prior to his notified date of his appointment with his doctor, was harsh, oppressive and unfair.

111   The appellant’s submission at first instance was that, at a meeting with Mr Ogilvie on 2 March 2022 to discuss his response to the COVID-19 policy, the appellant advised Mr Ogilvie he would need to visit his regular doctor for advice.  His submission was that this could not occur until 8 April 2022.  In his evidence, the appellant annexed handwritten notes of this meeting to his witness statement as annexure NM35 (AB143-145).  Whilst the handwritten meeting notes that the appellant made referred to him saying to Mr Ogilvie that he needed to visit his regular doctor and will advise ‘following appointment early April’, the appellant maintained that he informed Mr Ogilvie the appointment was for the 8th.

112   In cross-examination the appellant gave evidence to this effect and said he made the appointment with his treating doctor on 14 February 2022.  He also went to another doctor earlier on 27 January 2022 when he obtained a medical certificate and was off work.  The appellant’s evidence was that he did not discuss with this doctor an exemption from the COVID-19 policy and the doctor he spoke with suggested he speak with his own doctor, Dr Travers.  The appellant’s evidence was that whilst the doctor he saw had his medical reports from a previous medical condition, he did not have the scans (see p 13 transcript).  The appellant gave evidence that in his meeting with Mr Ogilvie, he informed him that he had arranged an appointment to see a doctor, but wished to see his own doctor because of his previous illness (see p 24 transcript).

113   The appellant accepted when it was put to him, that Dr Travers, who practises at the Forrest Medical Centre, is one of five or six doctors in this practice, all of whom had access to his medical records.  He further accepted that he could have seen one of the other doctors rather than wait to see Dr Travers (see p 25 transcript).  The appellant also testified that he wished to consult with Dr Travers because he was of the Catholic faith (see p 25 transcript).

114   In his closing submissions at first instance, the appellant maintained that his dismissal was premature, it occurring only two days prior to the appointment he had with his doctor on 8 April 2022 (see p 160 transcript).  It was the appellant’s submission at first instance that had he been able to see his doctor as arranged, there may have been a different outcome other than his dismissal.

115   It was broadly the contention of the respondent at first instance, that there was no good reason for the appellant to delay seeing his own treating doctor until early April 2022, when he was aware that his employment was at risk. And the appellant accepted that he could have seen one of a number of doctors much earlier.

116   Regardless of the contention just referred to, the failure by the learned Commissioner to refer to the evidence and submissions of the parties in relation to the issue of the appellant seeking medical advice from his doctor, constituted an error of material fact.  This factual issue is also relevant to ground 7, and whether, according to the appellant, the premature termination of his employment by the respondent, prior to seeing his treating doctor, was harsh, oppressive and unfair.  I will consider this issue together with ground 7, later in these reasons.

Unblemished service

117   The appellant contended that the Commission failed to have regard to his record of unblemished service with the respondent.  Whilst this was not contested at first instance, the fact that the appellant did have a clean employment record with the respondent, was not relevant to the issue of whether the respondent’s COVID-19 policy was a lawful and reasonable direction and further, whether the appellant failed to comply with it.  It was for this reason that the appellant was dismissed, and his record of service was not a relevant consideration in this regard.  This sub-ground is not made out.

Grievance Procedure

118   The issues raised by the appellant under this sub ground are dealt with in ground 1 above and do not require further consideration.

Ground 4

Timeframe for compliance

119   It was a part of the appellant’s contentions at first instance, as set out at [25f] that the time frame for compliance with the respondent’s COVID-19 policy, that being 31 January 2022, was impossible to meet. This contention was acknowledged by the learned Commissioner in her summary of the grounds of alleged unfairness, at [38d] of her reasons.  The learned Commissioner’s reasons in relation to the question of the time frame for compliance with the direction, were set out under a heading of that name, at [65] to [67] (see AB44).  Whilst the policy, as introduced by the respondent, specified a date of 31 January 2022 for the respondent’s employees to be fully vaccinated, the respondent acknowledged the tight time frame for compliance. In his email of 24 January 2022 accompanying the policy, Mr Ogilvie stated:

Given the date of publication of this policy, anyone not able to fulfil its vaccination requirements immediately should inform John Ogilvie, Diocesan Financial Administrator by email at [email address omitted], when they will meet these requirements as soon as possible after 31 January 2022.

120   This is clear recognition of the tight time frame for compliance and that the respondent acknowledged that some employees may require further time to be fully vaccinated.  Additionally, in an earlier email from the respondent dated 21 January 2022 the respondent’s recognition of the need for further time was explained the following terms:

For unvaccinated staff, who cannot meet these requirements by 31 January, there will need to be discussion with their supervisor on how they can do so as soon as possible after 31 January.

121   Evidence about this matter was given by Mr Ogilvie.  He acknowledged that taken literally, the specified time for compliance of 31 January 2022, the appellant who was as at 24 January 2022 was unvaccinated, would be impossible to comply with (see p 125 transcript).

122   Having regard to these matters, in my view, the publication of the policy, and the compliance date of 31 January 2022, needed to be understood in context.  The surrounding context was a recognition by the respondent that some employees, who were unvaccinated as at the time of the announcement of the policy, would not be able to meet the 31 January 2022 date for compliance.  This included the appellant.  In an email dated 26 January 2022 from Mr Ogilvie to the appellant, Mr Ogilvie acknowledged this issue and asked the appellant how long after 31 January 2022, it would take for him to comply with the policy (see AB105).  It was clear from all of the evidence, that the 31 January 2022 date for compliance in the policy was not truly a deadline. The respondent was not expecting, realistically, those who were unvaccinated as at the time of the announcement of the policy, to be fully vaccinated by that date.

123   It was further not in dispute on the evidence that the appellant, after some two and a half months, by 8 April 2022, still had not had a first vaccination, and nor had he obtained a medical exemption.  Whether the policy itself was a lawful and reasonable direction, is to be taken in the context of all of this evidence.  It cannot be reasonably concluded, as the appellant asserts, that the date of 31 January 2022 was set in stone and was unmovable.  That was plainly not the evidence, and the appellant, acting reasonably, in light of the communications with him, about this matter, could not have concluded that this was the case.  In light of these considerations, the learned Commissioner’s conclusion at [67] of her reasons was one that was open to her on the evidence.  Her finding that there was sufficient time for the appellant to arrange to be vaccinated, or alternatively, to obtain a valid medical exemption, was open on the evidence.  This sub-ground is not made out.

Vaccination Status

124   As to the contention of the appellant that the learned Commissioner’s reference to ‘vaccination status’ at [78] and [79] of her reasons was erroneous, I cannot accept that contention.  In my view it is a question of semantics as to whether one uses ‘evidence of vaccination’ or ‘vaccination status’, as the learned Commissioner did. Plainly, the requirement of the policy was that employees provide either evidence that they have been vaccinated or that they had a valid medical exemption. The context, in light of all of the evidence, and the policy read as a whole, and what was required by it, leaves little doubt that ‘vaccination status’, meant confirmation that an employee had been vaccinated in accordance with the respondent’s policy.

125   There is no merit in this sub-ground.

Ground 5

126   This ground is expressed broadly, in that it is asserted that the Commission erred in finding that there was sufficient consultation with the appellant in relation to the respondent’s COVID-19 policy and its impact on him.  However, in both his written and oral submissions to the Full Bench, the appellant seemed to focus more narrowly on whether there was any consideration by the respondent of his advice that he intended to see his doctor regarding compliance with the policy.

127   The issue of consultation with the appellant was dealt with in the learned Commissioner’s reasons at [68] to [71].  Whilst the submissions of the appellant were more narrowly focussed in addressing this ground, I will canvass the process of consultation generally, which was the subject of the finding by the Commission. The allegation of a failure to generally consult was contained at [25g] of the appellant’s written submissions at first instance (see AB207).

128   It was not contested at first instance that the respondent, apart from the preliminary ‘heads up’ (as they were described in the evidence) communications from the respondent, did not formally consult with the respondent’s staff regarding the implementation of the COVID-19 policy. However, this circumstance must be seen in context. The context was a rapidly evolving situation with regard to the pandemic, and considerable uncertainty, as previously noted.  The respondent did somewhat delay the introduction of its policy, but with the looming date of mandatory vaccination of 31 January 2022 under the State Government mandate, the respondent moved swiftly to introduce it.

129   Even prior to its introduction, on 19 January 2022 in response to a ‘heads up’ from the respondent, the appellant wrote to Mr Ogilvie requesting consideration for remote working access with a reply from Mr Ogilvie on the same day, that he would give it consideration (see AB98).

130   Almost immediately after the announcement of the policy the appellant, on 25 January 2022, wrote to Mr Ogilvie informing him that he would not be vaccinated by 31 January 2022 and sought a time to discuss the matter. In Mr Ogilvie’s reply on 26 January 2022, he referred to the appellant’s thoughts in relation to COVID-19 vaccinations having been shared and asked the appellant how soon after 31 January 2022 he would be able to comply with the policy (see AB105). There followed, over the course of February and March, extensive written exchanges between the appellant and Mr Ogilvie and the appellant and the respondent, regarding the appellant’s preparedness to meet the requirements of the COVID-19 policy.  As previously noted, when considering the other grounds of appeal, these communications, which numbered about 25, canvassed a range of issues.

131   These included repeated requests by the appellant to work from home which was not considered practical by the respondent, consistent with the appellant’s duties and additionally, it posed cyber security risks; requests for amendment to the policy, or some dispensation for the appellant from it; to enable unvaccinated staff to work from the respondent’s premises and to take rapid antigen tests on a regular basis; and the taking of long service leave, amongst other matters.  This body of correspondence was referred to by Mr Ogilvie in his cross-examination, when he stated that after some two and a half months of exchanges with the appellant, there was no positive outcome (see p 140 transcript).

132   The appellant and Mr Ogilvie met on two occasions on 21 January 2022 and on 2 March 2022. The appellant said he had a brief meeting with Mr Ogilvie on the afternoon of 21 January 2022 to discuss the respondent’s communications about the impending COVID-19 policy.  One matter raised again in that meeting was a proposal by the applicant that he work from home. Mr Ogilvie in cross-examination, testified that the appellant came to see him prior to the policy being released, in response to the respondent’s ‘heads up’, and raised with him the possibility of working from home (see p 108 transcript). There was also an email from the appellant to Mr Ogilvie dated 19 January 2022, again regarding working from home (see AB98). This was followed up by further correspondence including an email of 11 February 2022, regarding the same topic.

133   The capacity for consultation between the appellant and the respondent was interrupted by the appellant taking sick leave on the grounds of stress on 27 January 2022 until 14 February 2022.  This was shortly after the COVID-19 policy was announced.  It was Mr Ogilvie’s evidence there was little opportunity to consult with the appellant during this time.  In an email dated 27 February 2022, Mr Ogilvie wrote to the appellant and stated that he rejected the appellant’s suggestion that he was refusing to meet with the appellant to discuss the appellant’s compliance with the policy.  Mr Ogilvie further indicated he was reluctant to make any contact with the appellant whilst he was absent on sick leave.  Mr Ogilvie proposed arrangements to meet to discuss these matters further. He also observed that the respondent’s staff were anxious to know when the appellant would be returning to work, compliant with the policy, as they were undertaking additional work to cover for him (see AB135-136).

134   The next day on 28 February 2022 the appellant replied to Mr Ogilvie raising a number of issues as to the policy itself, not how he intended to comply with it.  This was a constant theme in the appellant’s correspondence with the respondent.  Additionally, consistent with his earlier statements to the respondent about vaccination generally, the appellant also referred to the implementation of the policy and observed ‘As you pointed out yourself, you were aware of my personal attitude to the vaccine at the time, and knew that the policy would have a major impact on me, but you resisted taking action to manage that.’  Again, this was a theme to be repeated in subsequent correspondence from the appellant to the respondent.

135   Mr Ogilvie addressed some of the appellant’s criticisms of the respondent’s approach in a reply email dated 1 March 2022.  In it, Mr Ogilvie reiterated that he needed time to consider the appellant’s work from home request and the period of time that he was proposing to do so and disputed that he had been in any way dismissive.  Mr Ogilvie also referred to the meeting between himself and the appellant on 21 January 2022 when the same subject of the appellant working from home was raised.  Furthermore, Mr Ogilvie referred to his letter to the appellant of 11 February 2022, and his subsequent emails to the appellant of 14 February and 21 February 2022, in which he explained why the appellant working from home was not possible in the circumstances.

136   Mr Ogilvie also noted that the appellant had made his position known to the respondent about this attitude towards the government mandates and publicly available research and public health advice.  He further noted that the appellant had provided no indication of his intention to meet the requirements of the COVID-19 policy. Mr Ogilvie also noted again that the appellant appeared to want to debate the content of the policy, rather than how he would comply with it.  Mr Ogilvie also observed that despite the appellant informing him that his regular doctor had been on leave and as yet, he had not been able to discuss the vaccination requirements with him, the appellant had consulted at least two doctors who provided him medical certificates for sick leave, both of which were opportunities to discuss the policy requirements (see AB139-140).

137   There were numerous other communications between the appellant and the respondent along the same lines, in which the appellant raised various requests and advanced various proposals, none of which contained an indication as to when he would be compliant with the COVID-19 policy.  The only indication he gave to his employer, was that he would be meeting with his own treating doctor in early April 2022 to discuss the matter.

138   As I have noted earlier in these reasons, these communications were occurring at a time where, as Mr Ogilvie stated in his testimony, the situation was very fluid and was changing daily, with updates from the Chief Health Officer and the Premier (see p 118 transcript).  Whilst as I have noted above, Mr Ogilvie accepted in cross-examination that at the time of the introduction of the policy itself, there had not been consultation directly with staff as to its terms (see p 126 transcript), this evidence and the surrounding circumstances, must be seen in the context of the developments at the time, regarding managing the pandemic in the community, and in particular, in workplaces throughout the State.

139   As noted, the appellant and Mr Ogilvie met on 1 March 2022, during which meeting, from the appellant’s own notes, a range of issues about the policy and its implementation were discussed (see AB143-148). At the meeting the appellant informed Mr Ogilvie again that he needed to visit his regular doctor who was on leave and said he had an appointment in early April 2022.  The next day on 2 March 2022, Mr Ogilvie by email wrote to the appellant referring to the meeting.  Mr Ogilvie noted that as the appellant had returned from sick leave that the appellant should remain on annual leave until 8 March 2022. Mr Ogilvie requested that the appellant advise of his position regarding being vaccinated by that date.

140   Whilst the appellant in his written particulars as to this ground of appeal, asserted that the respondent provided no evidence to the Commission that it paid any attention to the appellant advising of his doctor’s appointment, this was not so.  In an email communication to staff, on 3 March 2022, Mr Ogilvie informed staff that he had met with the appellant, that he had returned from sick leave, and would continue on annual leave.  Mr Ogilvie noted that the appellant was making an appointment to see his treating doctor regarding his eligibility for a medical exemption, ‘as was his right’ (AB150). Therefore, the appellant’s assertion that ‘there is not a single mention by the Respondent of the Applicant’s doctor in any of their correspondence after the meeting on 1 March 2022’, is not correct.

141   Further to what I have described thus far, on the evidence, there was a considerable amount of further correspondence between the parties in relation to the appellant’s contentions regarding the policy and his compliance.  In a letter dated 8 March 2022 to the appellant, Mr Ogilvie referred to the fact that the appellant had not, as previously requested, confirmed his position regarding compliance with the policy by that date.  He referred to the additional burden being placed upon the respondent’s staff by the continued absence of the appellant, and the frustration that was causing them.  Mr Ogilvie in the letter, directed the appellant to take further annual leave from, 9 March to 22 March 2022, to provide the appellant with further time to consider his position regarding complying with the policy.  Mr Ogilvie requested the appellant provide a response to him on his compliance by 22 March 2022 (AB152).

142   The appellant was also informed that if the appellant by that date, was not willing to comply with the policy, then the respondent would need to consider ‘whether you can continue in your position into the future’ (see AB152).  It was in response to this letter, on the same day, that the appellant by email, again informed Mr Ogilvie that he had not yet had an opportunity to seek advice from his doctor regarding vaccination and exemption. In response to the directive given to him to take annual leave, and the respondent’s inability to let the appellant work from home, the appellant requested a period of long service leave from 23 March 2022 to 8 July 2022.

143   By further email dated 10 March 2022, Mr Ogilvie informed the appellant that he had over five weeks to obtain advice on whether he was eligible for an exemption being granted by the Chief Health Officer.  Mr Ogilvie noted that he had access to doctors immediately, when seeking a medical certificate for sick leave, and on those occasions, the appellant could have, but did not, seek information and advice in relation to an exemption.  Mr Ogilvie also noted that other doctors in the appellant’s treating doctor’s medical practice, had access to his medical records and could have advised him (AB154-155).

144   Additionally, Mr Ogilvie informed the appellant that his stance to date, had ignored his responsibilities as the respondent’s Relationship Manager and the requirement that he be located at the respondent’s premises in order to undertake his duties, which includes visiting schools, where the vaccination requirement existed.  Also noted was the impact of the appellant’s ongoing absence on the respondent’s other staff and the additional demands being placed upon them.  (AB154-155).  Further communications took place between the appellant and Mr Ogilvie on 10 March 2022 (see AB156-157) and between the appellant the respondent on 15 March 2022 (see AB158-163).  In particular within the latter communication with the respondent, the appellant continued his broad resistance to the respondent’s policy and maintained and restated his resistance to vaccines generally.  In this respect, at AB160 the appellant, when proposing various options, stated:

That I acquiesce to the pressure and agree to receive the vaccine.

As I have stated before, my difficulty with this option is primarily a matter of conscience.  I would not seek to make the decision for another person to take an experimental injected drug, whether a vaccine or anything else.  That should be entirely their decision.  So too, I would not tell a person they are wrong to exercise their conscience to take the vaccine.  Again, that must be their decision as the consequences of the medication can only be borne by them, and by no one else.  The ethical considerations of vaccines made with the help of foetal cell lines (all the vaccines currently available in Australia) bother me enormously, and at this point in time, I feel that I would be letting myself down and betraying my better judgement if I took it.  I believe I would instantly regret the decision if I decided to acquiesce.  (My emphasis)

145   From the above summary, it cannot possibly be reasonably contended that there was no adequate consultation between the parties in relation to the impact of the COVID-19 policy on the appellant, as the appellant asserted in this ground.  Whilst the learned Commissioner expressed only in summary terms her assessment of this consultation issue at [68] to [71], she referred to the evidence of the extensive communications between the appellant and Mr Ogilvie, and the appellant and the respondent and her evaluation of it. Some of this correspondence was set out in the learned Commissioner’s reasons under the heading ‘Background and Facts’ at [7] to [16].  These formed part of her reasons when read as a whole.  Her evaluation of the content of those communications, supported the finding that she made that there was consultation on the impact of the COVID-19 policy on the appellant.  Furthermore, the learned Commissioner also considered the impact of the appellant’s absence on the operations of the respondent and raised the issue of the wellbeing of other staff. These were all matters that she was entitled to consider in assessing the appellant’s assertions.

146   This ground is not made out.

Grounds 6 and 7

147   There is considerable overlap between the issues raised in these two grounds so I will deal with them together. Additionally, as noted earlier ground 7 raises issues related to ground 1.

148   As the basis relied on by the respondent to end the employment of the appellant, was the alleged repudiation by the appellant of his contract of employment, and this was rejected by the learned Commissioner, the appellant was found to have been dismissed.  The respondent’s letter of 6 April 2022 (see AB190-192) set out the circumstances leading up to the respondent’s decision.  It concluded that by reason of the repudiation by the appellant, the employment was at an end on that day.  I note however, that despite this, the appellant was paid five weeks’ salary in lieu of notice, inclusive of an additional one weeks’ salary by reason of the appellant being over 45 years of age (see AB191).

149   The concept of summary dismissal, by which an employer may bring a contract of employment to an end without notice or payment in lieu of notice, is a common law remedy available to an employer in circumstances where an employee has been proven to have wilfully disregarded an essential condition of the contract of employment: North Television Corp (1976) 11 ALR 599 per Smithers and Evatt JJ at 609.  In a case of summary dismissal for misconduct, in circumstances other than dismissal for dishonesty or involving personal safety, there is a burden on the employer to adduce evidence to establish that the misconduct took place as a matter of fact: Parnell v The Roman Catholic Archbishop of Perth [2020] WAIRC 00420; (2020) 100 WAIG 1216 at [73] to [81] per Kenner SC (as he then was).

150   The difficulty in this case is that the appellant was not summarily dismissed in this sense, as the appellant did not return to work and was paid five weeks’ salary in lieu of notice. This issue was not canvassed at first instance in the proceedings.  Whilst the appellant referred to the respondent’s ‘onus’, at [17b] of his written submissions at first instance (see AB206), the basis on which the matter proceeded before the Commission, in particular whether the respondent had any evidentiary burden in this respect, was unstated.  Whilst ultimately, little may turn on the issue at the end of the day, in cases such as the present matter, where an allegation of misconduct arises in circumstances where the alleged conduct is contested, it would be helpful at the outset of the proceedings for these matters to be raised and clarified.

151   As mentioned, the respondent’s case at first instance was based on the concept of repudiation.  The crux of the appellant’s case on appeal as to this ground, turns on his assertion that at no time did he say to the respondent that he would not comply with, or refuse to comply with, the respondent’s policy.  In other words, at no time did he indicate, in the language of repudiation, an intention not to be bound by the contract of employment. In the letter of 6 April 2022 from the respondent to the appellant, bringing the appellant’s employment to an end, it was stated (see AB190):

Your subsequent email on 31 March 2022 at 4.48pm resorted to repeating your position you have taken over a two month period. In that time you have continued to robustly state that you have no intention of complying with the Diocesan Policy on Vaccination.  (My emphasis)

152   Two paragraphs below the above passage, the respondent referred to the appellant’s ‘approach in refusing to abide by the Policy…’.  The appellant in his evidence contested this assertion and maintained that he had not done what was alleged against him and that he wished to see his own treating doctor, prior to indicating his final position.

153   In relation to ground 6, the appellant referred to the evidence of Mr Ogilvie, where he was unable to point to any occasion where the appellant had actually used the words to the effect that he robustly stated he had no intention of complying with the policy (see pp 144-147 transcript).  The appellant also maintained that it was unfair for the respondent, as set out in ground 7, to dismiss him two days prior to his appointment to see his doctor, and that the learned Commissioner made no mention of this in her reasons.  However, on this point, Mr Ogilvie’s testimony was that over the course of the two and a half months or so of dealings with the appellant, the respondent came to its conclusion that the appellant had no intention of complying with the policy, by the appellant’s actions.  Mr Ogilvie said that any reasonable person would come to this view (see pp 144-145 transcript).

154   I would observe however, that by this time, the Grievance Procedure (which formed part of the appellant’s Conditions of Employment) had been invoked.  The respondent’s deadline of 25 March 2022 for the appellant to advise of his compliance with the COVID-19 policy had been overtaken by subsequent events.

155   In light of the above, and the documentary evidence, the paragraph cited above from the letter of 6 April 2022 was strictly inaccurate.  However, infelicity of expression should not be the deciding factor in matters of the present kind.  It is clear from the evidence taken as a whole, much of which has been traversed in some detail above, that the appellant did not at any stage provide the respondent with any level of comfort that he did intend to comply with the policy.  His views staunchly opposed to COVID-19 vaccines were well ventilated, including directly with the respondent.

156   As well as the appellant’s interests, the Commission is also required, in dealing with matters of the present kind, to give consideration of the interests of the employer, and other persons who may be directly affected. In this case, the workplace was small.  The uncontroverted evidence was that the position held by the appellant was an important one, in terms of the operation of the respondent’s finances. The continued absence of the appellant from the workplace, over some two and a half months, was causing disruption to the respondent’s operations.  Other staff were carrying an additional burden to cover for the appellant’s ongoing absence.  Vaccination requirements in organisations of the respondent, that the appellant would be required to access, could not be met unless he was compliant with the Policy.

157   All of these considerations are required to be balanced, along with the appellant’s right to procedural fairness, in accordance with both the general law and the specific terms of his employment, in this case the Grievance Procedure.

158   The timing of the letter of 6 Aril 2022 from the respondent to the appellant was problematic.  It is somewhat inexplicable, apart from evident frustration, why the respondent did not, having engaged with the appellant all the way to that point, enable him to see his treating doctor only two days later.  Whatever may have resulted from that consultation is speculative.  The issue is however, the loss to the appellant of the opportunity to do so.  This is despite the appellant’s clear and communicated views regarding vaccination.

159   As to the Grievance Procedure, and having already dealt with this in relation to ground 1, there was no obligation on the respondent to agree to mediation.  Mediation by its nature, requires two or more consenting parties. Given the stance adopted by the appellant and the respondent, over a lengthy period of time, it would be difficult to see how such a process would have any realistic prospects of success.  However, the grievance process did not commence until about 25 March 2022, once the appellant was made aware of its existence.  As noted above, in the circumstances of this matter, its commencement overtook the request by Mr Ogilvie to the appellant, to confirm his compliance with the COVID-19 policy by 25 March 2022, as set out in his letter of 18 March 2022 (see AB169-170).

160   The Grievance Procedure was on foot for only a little over a week when it was prematurely terminated by the respondent before the arbitration provision in cl 20.7 had been exhausted.  The respondent, having engaged with the process, in accordance with the appellant’s rights under the Conditions of Employment, was obliged to complete the procedure before taking any further action. To dismiss the appellant whilst the Grievance Procedure was still on foot was unfair. As the Conditions of Employment were arguably contractual in nature, it may well also have been unlawful. However, it is unnecessary to finally determine that issue.

Conclusion

161   The issues arising on this appeal have been finely balanced.  However, given my conclusions as to grounds 1 and 7, I consider that the learned Commissioner’s discretion miscarried.  She failed to take into account relevant considerations in determining whether the appellant’s dismissal was unfair.  The Commission erred in not considering these issues and making findings.  I would allow the appeal on this basis.

162   The Full Bench, under s 49(6a) of the Act, is not to remit a case to the Commission under s 49(5)(c), unless it considers it cannot make its own decision on the merits of the case due to lack of evidence or other good reason. Whilst the appellant sought reinstatement at first instance, he informed the Full Bench that he now has other employment. There was also little evidence as to the alternative of compensation for loss before the Commission at first instance.  Given this, the preferable course is that the decision of the Commission be suspended, and the matter remitted for further hearing on the question of remedy.

EMMANUEL C:

163   I have had the benefit of reading a draft of the reasons of the Chief Commissioner.  I agree with those reasons and have nothing to add.

KUCERA C:

164   I have also had the benefit of reading a draft of the reasons the Chief Commissioner prepared in this matter. I agree the matters in this appeal were very finely balanced, particularly in relation to appeal grounds 1 and 7.

165   While I appreciate the respondent had by 6 April 2022, become frustrated in its dealings with the appellant and there was real need for the respondent to address the appellant’s non-compliance with what was a reasonable and lawful direction to be vaccinated, I agree with the Chief Commissioner’s conclusions regarding the fairness of the respondent’s decision to bring the appellant’s employment to an end, two days before he could attend the scheduled appointment with his doctor on 8 April 2022.

166   I also respectfully agree with the Chief Commissioner’s views regarding the fairness of the respondent’s decision to terminate the appellant’s employment before the process of arbitration under the Grievance Procedure had been exhausted. I agree that it was incumbent upon the respondent, after it had agreed with the appellant to utilise arbitration, to see the process through.

167   It is reasonable to find the respondent’s decision to terminate the appellant’s employment without first knowing what the result from the appellant’s appointment with his doctor was or before the dispute over his refusal to be vaccinated could be resolved by arbitration, was unfair.

168   Having agreed with the Chief Commissioner’s reasons, I would uphold the appeal. I also respectfully agree that the matter should be remitted to the learned Commissioner for further hearing, on the question of remedy.