UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00685

DELIVERED : monday, 14 August 2023

FILE NO. : U 61 OF 2022

Applicant

AND

Roman Catholic Bishop of Bunbury

Respondent

CatchWords : dismissal – repudiation – requirement to be vaccinated – COVID-19 policy – inability to enter workplace because of vaccination status – duties cannot be done entirely remotely – refusal to comply with lawful and reasonable order – dismissal not unfair

Legislation : Industrial Relations Act 1979 (WA)

  Occupational Safety and Health Act 1984 (WA)

  Privacy Act 1988 (Cth)
Work Health and Safety Act 2020 (WA)

Result : Dismissed

Representation:

Applicant : Mr N Maher (in person)

Respondent : Mr I Curlewis (of counsel)

Case(s) referred to in reasons:

Adami v Maison de Luxe Limited [1924] HCA 45; (1924) 35 CLR 143

Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399

Briggs v AWH Pty Ltd [2013] FWCFB 3316; (2013) 231 IR 159

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

Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272

Gallotti v Argyle Diamond Mines Pty Ltd trading as Argyle Diamonds (2003) 83 WAIG 919; (2003) 83 WAIG 3053

Gelagotis v Esso Australia Pty Ltd t/a Esso [2018] FWCFB 6092

JL v Haydar Family Restaurants t/a McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

McManus v Scott-Charlton [1996] FCA 904; (1996) 70 FCR 16

R v Darling Island Stevedoring and Lighterage Company Limited [1938] HCA 44; (1938) 60 CLR 601

Sommerville v University of Tasmania [2022] FWC 1582

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

Reasons for Decision

1         Mr Nicholas Maher was employed by the Roman Catholic Bishop of Bunbury (RCBB) as a Relationship Manager from 17 March 2008 until his employment ended on 6 April 2022.

2         Mr Maher says his termination of employment was a dismissal at the initiative of his employer and that the dismissal was unfair and he seeks reinstatement to his former position.

3         RCBB contends that Mr Maher repudiated his employment by conduct that prevented him from performing his duties and that the Diocese’s acceptance of the repudiation ended Mr Maher’s employment. RCBB says it did not dismiss Mr Maher.

Background and Facts

4         In January 2022, RCBB introduced a COVID-19 vaccination policy (COVID-19 policy) to apply to all workers at premises of the Diocese of Bunbury. The COVID-19 policy required all employees to have at least two COVID-19 vaccinations by 31 January 2022 and provide evidence of vaccination status or provide a valid exemption from vaccination.

5         On 24 January 2022 RCBB emailed all staff including Mr Maher, notifying him, of the COVID-19 policy requirements and attaching a copy of the policy.

6         On 25 January 2022 Mr Maher emailed the Financial Administrator stating: ‘I will not be vaccinated by 31 January. Please arrange a time to discuss’.

7         The Financial Administrator responded the following day stating:

You have shared before your thoughts on COVID-19 vaccinations.

With regard to the policy, how soon after 31 January 2022 do you see yourself complying with the policy which applies to all staff?

8         On 27 January 2022 Mr Maher responded stating:

I do not wish to meet in order to share my thoughts on the Covid-19 vaccines. I do not know why you would characterise my request for a meeting in that way. It is unfair and telling.

It was rather, in direct reply to your email advising the implementation of a new workplace policy that affects me, and particularly with regard to your request for advice on my vaccination status.

I have some legitimate questions about the policy and how it impacts my work and employment. For example, the policy does not clearly state what is meant by "fully vaccinated" – whether that is two shots or two shots and a booster. There are other questions too.

Your refusal to meet with me and to dialogue is worrying and is a further cause of stress. The situation is anxious as it is and your refusal as my manager to meet with me to discuss is making it worse and causing me more anxiety. I would have hoped and thought that you would want to find a solution to the issues raised by the new policy that was agreeable to all. That is clearly not the case.

I have made an appointment with my doctor today and will be taking the rest of the day off on sick/stress leave. I will provide you with a doctors certificate in due course should the problem persist and the doctor advise that I need additional time.

9         Mr Maher commenced sick leave on 27 January 2022 and submitted a medical certificate for the period from 27 January 2022 to 14 February 2022.

10      On 11 February 2022 the Financial Administrator wrote to Mr Maher in relation to his role and the requirement to be vaccinated as follows:

As you know your employment contract requires you to work from the Diocesan Office to supervise staff, be available to customers and priests and visit school Principals and Bursars. Unlike other places, we have a lay customer service.

As you are aware the Policy requires that you provide to the Diocese evidence of your COVID-19 vaccination status or a valid medical exemption in order to enter the Diocesan Centre premises for work purposes.

To date, you have not however provided evidence to the Diocese that you have been vaccinated nor have a valid exemption from the Werst Australian Chief Health Officer Dr Andrew Robinson.

Accordingly, the Diocese now formally directs you not to attend the Diocesan Centre premises unless you are double vaccinated.

As a temporary measure the Diocese directs that you take annual leave from 15 February 2022 to 8 March 2022 inclusive. The purpose of this direction is to provide to you a short period to consider this letter and comply with the Policy requirements.

Hence please provide me with evidence of your vaccination status or exemption by midday on 8 March 2022.

I am available to discuss this matter with you should you wish.

11      On the same day Mr Maher responded saying:

Once again, I express my disappointment that there has been no discussion or consultation on the matter of the vaccine policy, despite my frequent requests.

I would therefore like to again request a meeting where the possibility of work from home might be discussed. As you know, we successfully navigated the running of the office during the period of lockdown in 2020, without any issues arising or concerns having been noted.

I note also that my contemporaries operating in the Melbourne office of the CDF (Relationship Managers) have been working from home for many months now and have adapted their systems (and ours) accordingly. As you know, work from home where possible has been a preferential remedy to these situations across Australia.

I would propose that for the period 15 Feb to 8 Mar inclusive, rather than forcing me to take leave, you might reconsider the work from home arrangement. If any difficulties or issues emerge in that time, further review and management can occur. Supervision of staff can occur remotely through daily teams meetings and the normal supports through phone and email.

In any case, please forward to me a copy of my employment contract, the relevant Award, and a copy of my position statement highlighting the specific duties related to ‘supervision’.

John, I hope you would consider this proposal generously before other measures. You can be sure I would do whatever is necessary to satisfy any concerns you might have.

12      RCBB’s letter of 11 February 2022 to Mr Maher, formally directed him to not attend the Diocese Office unless he had received two vaccines and requested that he provide evidence of his vaccination status or exemption by 8 March 2022. Mr Maher was directed to take annual leave from 15 February 2022 until 8 March 2022.

13      Subsequently Mr Maher and the Financial Administrator exchanged communications by email and met in person to discuss the COVID-19 policy and Mr Maher’s request to work from home.

14      On 8 March 2022 Mr Maher requested a period of long service leave from 23 March 2022 to 8 July 2022 inclusive. Mr Maher cited RCBB’s ‘unreasonable refusal to consider work-from-home’ and ‘implied threat of the potential loss of employment’ for making this request.

15      On 10 March 2022 in response to Mr Maher, the Financial Administrator emailed Mr Maher setting out several issues related to the situation and reiterated the request for evidence of Mr Maher’s vaccination status or provision of an exemption by 22 March 2022.

16      On 18 March 2022 the Financial Administrator wrote to Mr Maher:

Show Cause – Inability to carry out your duties

I am writing to you about the Diocesan Policy on Vaccination Status for All Diocesan Employees.

You have been sent various communications since 18 January 2022 about the requirement that you provide to the Diocese acceptable evidence of COVID 19 vaccinations or a valid medical exemption.

Despite my latest letter dated 8 March 2022, you have still not provided evidence to the Diocese of your vaccination status nor a valid medical exemption. You have also not been able to carry out all your required duties at the Diocese because you have not satisfied the requirements to be permitted to access the workplace or customer locations. Hence, you have been required to take annual leave since 15 February 2022 until 22 March 2022.

By my letter dated 11 February 2022, emails dated 14 February 2022, 21 February 2022, meeting on 2 March 2022, and subsequent emails dated 2 March 2022 and 10 March 2022, you have been advised that working from home is not tenable.

In this context, your request for long service leave has not been approved. The leave has been requested at short notice and cannot be accommodated within the Diocese operations.

I have explained to you why it is that the Diocese requires a person in your position to carry out your duties at the Diocese workplace and at customer locations, namely, to supervise staff and meet with priests, customers, and potential customers in and outside the office. You are also required to visit schools in the Diocese and other customers and potential customers, such as Catholic Homes Inc. and cannot do that unless fully vaccinated or exempt.

It is important I again reiterate that it is a requirement that you be fully vaccinated or have a valid health exemption recorded on the Australian Immunisation Register. The Diocese is not of course directing you to be vaccinated. Whether you are vaccinated or not is your prerogative. However, without such vaccination or exemption you have placed yourself in a position that you cannot carry out all your duties as required.

You have previously been advised that if you are unable or unwilling to comply with the Policy requirements, the Diocese will have to reassess the continuing of your employment by the Diocese.

Opportunity to respond

In view of everything stated and our communications with you, the Diocese now considers that the end of your employment is very likely.

However, before a decision regarding your employment is made, the Diocese provides you by this letter a final opportunity to respond in writing with any details you have not already, given during our meetings and communications, that you want the Diocese to take into account or reasons why the Diocese should not consider the employment at an end. For the avoidance of doubt, the Diocese has considered all of your responses and representations to date.

Your response is required by 3pm on 25 March 2022. In the period 22 to 25 March, you must not enter the Diocese workplace nor carry out any duties at home. You will be provided special paid leave in that three day period.

I appreciate that this may be a difficult time for you.

17      Mr Maher produced no proof of vaccination nor exemption to RCBB as required under the policy.

18      Mr Maher's employment ended on 6 April 2022.

Was Mr Maher Dismissed?

19      A threshold issue arises as to whether Mr Maher was dismissed on 6 April 2022 to attract the jurisdiction of the Commission under s 29(1)(b)(i) (as it then was) of the Industrial Relations Act 1979 (WA) (IR Act). This is a jurisdictional fact necessary to be found for the Commission to further consider whether any such dismissal is harsh, oppressive or unfair: Gallotti v Argyle Diamond Mines Pty Ltd trading as Argyle Diamonds (2003) 83 WAIG 919; (2003) 83 WAIG 3053; JL v Haydar Family Restaurants t/a McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303.

20      RCBB contends that that the employment of Mr Maher was ended because of the conduct and attitude of Mr Maher; and RCBB did not dismiss Mr Maher. RCBB says that it is open to the Commission to conclude on the evidence, based on Mr Maher's conduct, attitude and communications with RCBB in the period of October 2021 to April 2022, that Mr Maher conveyed to RCBB an intention not to comply with the policy, and thereby prevented a proper and adequate performance of his duties as Relationship Manager: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 (Koompahtoo).

21      RCBB asserts that Mr Maher was steadfastly and robustly opposed to being vaccinated against COVID-19 and despite being given additional time from 31 January 2022 to 22 March 2022 to comply with the policy to be vaccinated he chose not to do so. RCBB says that Mr Maher made it known that his view is that vaccines are ‘immoral’, and his refusal to have a COVID-19 vaccine was a ‘matter of conscience’.

22      RCBB says Mr Maher used various strategies to avoid complying with the policy, including generally prevaricating, unavailability of professional advisers and garrulous emails. RCBB says Mr Maher attempted to solicit other employees in the Diocese office to support his anti-vaccination cause.

23      Further RCBB says Mr Maher’s failure to be vaccinated prevented him from visiting schools, which at all material times, were subject to Health Directions issued by the WA State Government. It also prevented Mr Maher visiting other Catholic customers who were also subject to the Health Directions. Further, the failure to be vaccinated prevented Mr Maher from visiting these schools and other Catholic customers to raise funds, discuss loans and be provided services.

24      In all these circumstances, RCBB says Mr Maher prevented any continuation of his employment and thereby he repudiated the employment relationship.

25      RCBB refers the Commission to Gelagotis v Esso Australia Pty Ltd t/a Esso [2018] FWCFB 6092 at [119] for the test for repudiation:

…[I]s whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.

26      Mr Maher does not accept that his conduct constituted a repudiation of the employment contract and asserts the employment was ended at the initiative of his employer.

27      Mr Maher submits that the letter dated 6 April 2022 notified him that his employment had been ended. Mr Maher submits that the letter was sent at the employer’s initiative and is conduct consistent with a termination of Mr Maher’s employment at RCBB’s initiative and it follows, then, that Mr Maher was dismissed within the meaning of the IR Act.

Repudiation - Principles

28      The test for determining whether a contract has been repudiated by a party to the contract, is whether the conduct of the party, when assessed objectively, displayed an intention to no longer be bound by the contract.

29      In Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 at [77], Hargrave J summarises the legal principles which are to be considered when assessing whether there has been repudiation of an employment contract, as determined by Ross J in Whittaker v Unisys Australia Pty Ltd [2010] VSC 9; (2010) 26 VR 668, citing Koompahtoo:

(1) The term repudiation is used in a number of senses. Relevantly, the High Court has recently stated that repudiation:

may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It be may termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

(2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one.

(3) Whether there has been repudiation is a question of fact.

(4) Repudiation is not to be inferred lightly. It is a serious matter.

(5) Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.

(6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation.

(7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured.

Consideration

30      The issue for determination is whether the employer dismissed Mr Maher. If Mr Maher was not dismissed the application under s 29(1)(b)(i) must fail. RCBB contends that Mr Maher, by his conduct, repudiated his contract of employment and that RCBB accepted the repudiation on 6 April 2022. That is, there was no dismissal and therefore, s 29(1)(b)(i) of the IR Act does not apply in these circumstances.

31      For Mr Maher to have repudiated his conduct, there must be some act (or omission) that is inconsistent with the contract of employment, and an acceptance of the repudiation. RCBB contends that the conduct relied upon was Mr Maher failing to get vaccinated and/or failing to provide proof of being exempt from the need to vaccinate, also Mr Maher’s communications with RCBB and staff of RCBB concerning COVID-19 vaccines. It is submitted RCBB’s letter of 6 April 2022 is the acceptance of that repudiation.

32      I find that Mr Maher did not convey to RCBB that he no longer intended to be bound by the employment contract. Mr Maher conveyed that he wished to continue to perform his duties albeit from a different location or be permitted to take leave until the requirement to be vaccinated was revoked.

33      Mr Maher conveyed his personal attitude toward the COVID-19 vaccination, a reluctance to be vaccinated and his wish to work from home.

34      Communications between Mr Maher and RCBB concerned the requirements of the policy, willingness to meet with Mr Maher, the subject matter to be discussed at a meeting with Mr Maher, the location of meetings with Mr Maher, the capacity of Mr Maher to meet, the viability of working from home, the basis of the policy, Mr Maher’s opportunities to obtain a medical exemption from vaccination and leave arrangements.

35      There was no indication from RCBB that he considered Mr Maher was conducting himself in a manner which repudiated his contract of employment prior to the letter terminating his employment on 6 April 2022.

36      I find that the communications between Mr Maher and RCBB during February 2022 and March 2022 are consistent with RCBB dismissing Mr Maher because of him not being able to meet the inherent requirements of his contract of employment.

37      I find that Mr Maher was terminated by RCBB at the initiative of RCBB because in RCBB’s view Mr Maher could not perform the inherent requirements of the role. Mr Maher was, therefore, dismissed.

Was Mr Maher’s Dismissal Unfair?

38      Mr Maher contends that RCBB’s direction concerning the COVID-19 vaccination was neither lawful nor reasonable because:

a. His contract of employment did not provide RCBB an entitlement to introduce and amend policies from time to time, and this included the introduction of a policy requiring mandatory vaccinations;

b. The scope of the relevant public health order did not apply to his position and that RCBB’s rationale for introducing the COVID-19 policy was not an appropriate control measure;

c. RCBB did not consider reasonable adjustments that would have enabled him to work remotely, take leave or permit him to work at different times or on different shifts from other employees;

d. It was not possible for him to meet the timeframes for compliance with the COVID-19 policy;

e. 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;

f. 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;

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

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

39      RCBB asserts that Mr Maher was given a lawful and reasonable direction to comply with RCBB’s policy and Mr Maher made no attempt to comply with the direction. RCBB says Mr Maher prevaricated and attempted to justify his anti-vaccination cause. When notified that his failure to comply would result in his employment ending, he made no attempt to comply.

What Constitutes a Reasonable and Lawful Direction?

40      An employee has a duty to obey an employer’s lawful and reasonable orders (see R v Darling Island Stevedoring and Lighterage Company Limited [1938] HCA 44; (1938) 60 CLR 601 at 621; Adami v Maison de Luxe Limited [1924] HCA 45; (1924) 35 CLR 143 at 151; McManus v Scott-Charlton [1996] FCA 904; (1996) 70 FCR 16 at 21AD (McManus)). Disobeying or disregarding a reasonable lawful order is a serious matter. Reasonableness is a question of fact and balance/degree: McManus at 30C.

41      In his recent decision of Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (Finlay), Allanson J set out the law in relation to lawful orders at [21]:

It is a fundamental term implied by law into all employment contracts that employees are contractually obliged to follow the lawful and reasonable directions of their employer. At common law, an employee's obligation of obedience is to lawful commands - commands which involve no illegality, which fall within the scope of the contract of service, and are reasonable: R v Darling Island Stevedoring and Lighterage Co; Ex parte Halliday v Sullivan (1938) 60 CLR 601, 621 - 622. Reasonableness is not a separate requirement, but is the standard or test by which the common law determines whether an order is lawful: One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] FCAFC 77; (2018) 262 FCR 527, 564; McManus v Scott-Charlton (1996) 70 FCR 16, 21. Reasonableness is not determined in a vacuum, but rather by reference to 'the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship…': R v Darling Island Stevedoring and Lighterage, 622.

42      The direction must be reasonable and lawful but need not be the ‘better’ direction or ‘preferable direction’; a determination of what is reasonable must be assessed against factors relevant to the employment relationship. The Full Bench of the Fair Work Commission considered this in in Briggs v AWH Pty Ltd [2013] FWCFB 3316; (2013) 231 IR 159 (Briggs v AWH) at [8]:

The determination of whether an employer’s direction was a reasonable one … does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.

Consideration

43      Mr Maher asserts that the decision to dismiss him was not lawful and contends that the direction to be vaccinated was not reasonable and other arrangements could have been made to facilitate him to perform his duties and reduce any risk to others. Mr Maher’s submissions raised several issues that I will now address.

Contract of Employment

44      Mr Maher contends that his contract of employment did not provide for his conditions of employment to be varied. Mr Maher contends that the introduction of the COVID-19 policy and the requirement to be vaccinated was a variation of his conditions of employment not permitted under his contract.

45      Mr Maher’s contract of employment states:

Conditions of Employment

The general conditions of employment of the role are those contained in the attached document titled Conditions of Employment for Employees of the Catholic Diocese of Bunbury and its Organisations (the Diocese Conditions of Employment).

The Diocese Conditions of Employment may be amended from time to time by the Diocese in a manner consistent with this agreement.

This letter is intended to supplement the Diocese Conditions of Employment. In order to avoid doubt if the two documents are inconsistent in any respect, this letter prevails to the extent of the inconsistency.

46      The contract of employment included the following:

I have read the Conditions of Employment for Employees of the Catholic Diocese of Bunbury and its Organisations and acknowledge it may be varied from time to time in a manner consistent with this agreement.

47      Mr Maher signed the contract of employment on 6 February 2008 at the commencement of his employment and in doing so specifically accepted that the Conditions of Employment may be varied from time to time by his acknowledgment signed by him.

48      The Conditions of Employment provided for amendments, per the following clauses:

24.1 These conditions of employment are to be reviewed by the Diocese at the end of every three-year period.

24.2  Amendments or variations will not be made if their effect is to disadvantage employees overall.

24.3 Variations to these conditions of employment for individual employees are permitted with prior approval from the Vicar General and Financial Administrator.

49      I find that the terms of the contract of employment provided for variations to the Conditions of Employment from time to time, provided the variation was made consistent with the Agreement. The limitation is that variations will not be made if their effect is to disadvantage employees overall. The introduction of the COVID-19 policy was not a disadvantage to employees overall.

50      Mr Maher’s assertions that RCBB was not entitled to amend the conditions of employment by introducing the COVID-19 policy are incorrect.

51      Even so, the right of an employer to direct their employee is implied at common law. Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction.

52      The implied duty to obey lawful and reasonable directions was considered recently by the Full Bench 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; (2021) 310 IR 399 (Mt Arthur Coal) as cited in Sommerville v University of Tasmania [2022] FWC 1582 at [106]:

In summary, the duty to obey does not require a written or express term of the employment contract to that effect but, rather, the duty to follow a lawful and reasonable direction is implied into all contracts of employment. The fact that the term is implied, as opposed to being expressly written (although it often will also be expressly stated), does not affect its legal efficacy.

53      I find Mr Maher had a duty to follow a lawful and reasonable direction of RCBB.

Was the COVID-19 Policy an Appropriate Measure?

54      Mr Maher contends that the COVID-19 policy was not an appropriate control measure in response to the need to reduce the spread of COVID-19. In addition, Mr Maher says that the direction to be vaccinated was developed having scant regard to the specific circumstances of the workplace; and the direction to be vaccinated lacked a clear, understandable, and logical basis.

55      RCBB had then, and still has, a positive duty to ensure the health and safety of the workplace so far as is reasonably practicable. Failure to comply with this duty can have serious consequences. The duty extends to measures to eliminate or mitigate the risks of COVID-19 in the workplace.

56      Due to the COVID-19 pandemic, RCBB was required to comply with its obligations to ensure the health and safety of its workers while at work in accordance with work health and safety legislation. This included consideration of available and effective means to control the risk of COVID-19 in workplaces controlled by RCBB, and client workplaces, so far as was reasonably practicable. Considering the prevailing circumstances at the time of the introduction of the COVID-19 policy, the risks of COVID-19, and the measures of effective and efficient control including vaccination, I find the terms of the COVID-19 policy, and its introduction, to be reasonable.

57      Accordingly, RCBB had a legitimate basis for implementing the policy as a measure to protect employees and others in the workplace in connection with COVID-19. The policy was an appropriate measure.

Adjustments

58      Mr Maher argues it was unfair to dismiss him because he could have worked from home, taken leave, or be permitted to attend the workplace at different times or on different shifts from other employees.

59      Mr Maher says that he could perform his role away from the office and ought to have been permitted to work from home in circumstances where his vaccination status was deemed to be a risk by RCBB.

60      Mr Maher’s contract of employment designates that the principal place of employment is the Diocese Offices. The duties of Mr Maher set out in the Position Description required contact with customers and the evidence is that this included visiting schools and meeting with school principals, bursars and finance staff. At times customers would come to the Diocese Office to meet with Mr Maher.

61      I accept that the duties of Mr Maher involved meeting people and, in some circumstances, public health orders limited visitors to persons who were vaccinated. I accept that not all of Mr Maher’s duties could be performed remotely.

62      In these circumstances the direction to Mr Maher to be vaccinated was a reasonable and lawful order that fell within the scope of the contract of employment.

63      RCBB gave evidence that they had received advice concerning risks associated with remote work arrangements following a cyber-attack on Mr Maher’s account and were therefore, reluctant to permit working from home arrangements. I accept that, in the circumstances, the arrangements requested by Mr Maher presented risks to RCBB’s operations and it was reasonable for RCBB to be wary of permitting work from home arrangements.

64      Even if it was accepted that working from home arrangements were practicable, as in Briggs v AWH, RCBB need not demonstrate there may have been better or preferable directions.

Timeframe for Compliance with Direction

65      Mr Maher contends that it was not possible for him to meet the timeframes for compliance with the COVID-19 policy.

66      Mr Maher’s email to the Financial Administrator on 25 January 2022 indicates that he clearly understood that the COVID-19 policy required him to be vaccinated by 31 January 2022. Mr Maher stated he would not be able to comply with the requirement and sought a meeting to discuss.

67      There was a significant period between the first occasion he was notified of the COVID-19 policy and the requirement to be vaccinated, and the date on which his employment ended on 6 April 2022, for Mr Maher to provide evidence of his vaccination status or a valid medical exemption. I find that there was sufficient time for Mr Maher to arrange to be vaccinated with the first vaccination or obtain a valid medical exemption.

Consultation

68      Mr Maher asserts that RCBB did not properly and genuinely consider his responses, particularly the matters raised in his emails dated 28 February 2022 and 15 March 2022. Mr Maher further says that RCBB did not properly and genuinely consider the content of the discussion at the meeting of 2 March 2022.

69      Mr Maher did not expand on his submission that RCBB did not comply with the consultation requirements of the Occupational Safety and Health Act 1984 (WA) (OSH Act). Mr Maher did not give any evidence on this element of his submissions. In these circumstances I do not find that RCBB breached the OSH Act nor its successor the Work Health and Safety Act 2020 (WA).

70      Mr Maher points to the content of the termination letter dated 6 April 2022 and claims that the contents of the letter ‘mentions but does not engage in any meaningful way with the responses of Mr Maher’. Mr Maher says that had RCBB properly considered his responses it would have reached a different conclusion.

71      Based on the evidence of the extensive correspondence between Mr Maher and the Financial Administrator, and Mr Maher and the Bishop, and an evaluation of the content of the communications; I find that there was consultation on the impact of the COVID-19 policy on Mr Maher’s situation along with considerations of the operations of the organisation and the safety and wellbeing of all employees and customers.

Obligations Under the Privacy Act 1988 (Cth)

72      Mr Maher argues that 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.

73      Mr Maher did not provide particulars nor expand on this issue in his evidence and submissions.

74      I accept that RCBB needed to know each of its employees’ vaccination status to ensure that it could comply with its obligations under Work Health and Safety legislation to keep employees, and any persons they engaged with in the course of their employment, safe and healthy, and enquiries as to the vaccination status of employees were lawful and reasonable. There is no evidence that RCBB breached any obligations it may have had.

Did Mr Maher Refuse to Comply with a Lawful and Reasonable Direction?

75      The reason given for dismissal, as set out in the letter dated 6 April 2022, was Mr Maher’s non-compliance with the COVID-19 policy.

76      Mr Maher submits that RCBB incorrectly asserts that he refused to comply with the policy.

77      It is clear from the evidence that Mr Maher did not comply with the COVID-19 policy.

78      In all of the circumstances I find that the direction to Mr Maher to provide his vaccination status or a medical exemption was lawful and reasonable.

79      I find that Mr Maher disobeyed the lawful and reasonable order of RCBB to provide his vaccination status or a medical exemption.

80      Mr Maher’s refusal to comply with that lawful and reasonable direction alone constituted a valid reason for his dismissal and had the consequential result that he was not ready, willing and able to fulfil the requirements of his role.

81      In all the circumstances Mr Maher’s conduct justified the termination of his employment.

82      For the reasons set out above I dismiss this application.