Latest developments in Australian COVID-19 workplace litigation
15 November 2021
15 November 2021
The introduction of new workplace policies and procedures in Australia, including for COVID-19 vaccinations, has resulted in a surge of COVID-19 related workplace litigation. Claims have been made by employees about issues such as lawful and reasonable directions, discrimination and general protections, privacy, workers compensation, a failure to consult about workplace policies and the validity of public health orders. This Alert considers the nature of each of these claims.
The enforceability of COVID-19 workplace policies that require increased safety measures and controls (where non-compliance may lead to dismissal) is dependent on these directions being "lawful and reasonable". To date, the Fair Work Commission has considered and upheld the enforceability of three such requirements:
In Yordanos Fesshatsyen v Mambourin Enterprises Ltd  FWC 1244, the Commission held that the applicant's failure to comply with a temperature check procedure constituted serious misconduct and was a valid reason for termination of employment. In coming to its decision, the Commission recognised the important requirements of the applicant's role as an employee within the disability services industry, which resulted in a heightened need to consider the safety of the applicant's colleagues and clients.
In Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd  FWC 949, the applicant was working in an accredited aged care facility as an enrolled nurse and was found not wearing PPE, not observing social distancing measures and not complying with the stage 4 restrictions in place at the time. The applicant's failure to comply with the directions in place in respect of these matters was found to be a valid reason for termination of employment. The Commission held that termination was sound and defensible in order to mitigate against the high risks posed by COVID-19 to aged care facilities, staff and their residents.
The decision in Mr Hedayat Hooshmand v Cater Care Australia Operations Pty Ltd  FWC 4371 also exemplifies the significance of a threat of non-compliance in high risk environments. In this case, the applicant deliberately coughed in the face of a registered nurse who was taking his temperature for COVID-19 purposes. The conduct was found to be a valid reason for dismissal amounting to a "serious incident that was contrary to known hygiene procedures in an aged care facility during a pandemic."
More recently, the Commission Full Bench in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 upheld the dismissal of an employee who refused a lawful and reasonable direction to receive a flu shot. This outcome is consistent with the previous Commission decision in Ms Bou-Jamie Barber v Goodstart Early Learning  FWC 2156, which concerned factually analogous circumstances.
The Full Bench appeal in Kimber was brought by an aged care facility worker in NSW who was dismissed after her employer determined that she did not have a valid medical contraindication to allow her to refuse a mandatory influenza vaccine. The Full Bench majority affirmed:
In dissent, Deputy President Dean denounced mandatory vaccinations and expressed her concern that a blanket mandate "fails the tests of proportionality, necessity and reasonableness." Justice Beech-Jones in his NSW Supreme Court decision of Kassam v Hazzard; Henry v Hazzard  NSWSC 1320 which considered the validity of NSW Public Health Orders (see below), later criticised Deputy President Dean's comments, stating that they were reflective of political opinion as opposed to legal analysis.
The Commission has also considered lawful and reasonable directions which require mask wearing in certain settings. In the decision of Watson v National Jet Systems Ltd  FWC 6182, Deputy President Lake found that mandating face masks for airline cabin crew was a lawful and reasonable direction in the context of the COVID-19 pandemic. The issues in dispute were considered in the context of whether or not the applicant was dismissed within the meaning of the Fair Work Act 2009 (Cth), which ultimately involved the Commission considering whether the direction to wear a face mask or shield was a lawful and reasonable direction. Influential factors in Deputy President Lake's finding that the directions issued by the employer were lawful and reasonable include that:
Disciplinary action (including dismissal) following non-compliance with a COVID-19 workplace policy or direction may also lead to an employee making an application for relief under the general protections regime.
While there have not yet been any successful challenges under the general protections regime, some employees have lodged discrimination complaints with at least one state anti-discrimination body, citing unspecified "medical reasons" as the basis for their claim. To date, these claims have been withdrawn prior to a conciliation stage.
In QNurses First Inc v Monash Health  FCA 1372, the applicants sought an urgent interlocutory injunction to restrain their employer from taking disciplinary action against employees who had not complied with a direction to be vaccinated against COVID-19. The employer had issued the direction to staff in keeping with the Victorian Government's Public Health Direction, which required nurses to be vaccinated. Staff were not directly consulted prior to the issuing of the direction. The applicants claimed that the employer was taking unlawful adverse action by disciplining the employees who sought to exercise a workplace right of consultation.
The application was dismissed. The Court found that the evidence led by the employer demonstrated that its reasons for undertaking the disciplinary processes had nothing to do with the possession or exercise of any workplace rights. Justice Snaden further commented that the applicants' case was "with respect, very weak (if it exists at all)".
Under many COVID-19 policies, employers are now tasked with the collection, handling and storage of sensitive COVID-19 health information, bringing to light various privacy considerations. Data about employee vaccination status and rapid antigen testing results must be handled consistent with privacy laws and regulations, such as the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
This issue is further complicated where third parties are involved, as there is greater risk where information is shared beyond the employer and employee relationship. Employers should take care to ensure that all necessary consents have been obtained from employees when requesting the disclosure, and subsequent sharing of, sensitive health information in the context of managing COVID-19 in the workplace. This information should then be carefully managed and stored.
The consequences of failing to take necessary precautions and ensure safe working environments have also contributed to workers compensation claims related to COVID-19.
In Sara v G & S Sara Pty Ltd  NSWPIC 286, the NSW Personal Injury Commission found an employer liable in circumstances where an employee contracted COVID-19 when undertaking work-related travel. The employee was found to have contracted the virus in the course of his employment and the PI Commission determined that his COVID-19 related death was compensable.
In Victoria, WorkSafe Victoria has laid charges against the Victorian Department of Health for failing to take reasonably practicable steps to provide a safe working environment for hotel quarantine workers. The Department was charged with a total of 58 breaches of the Occupational Health and Safety Act 2004 (Vic) following a failure to appoint individuals with the necessary infection prevention and control expertise and training.
WorkSafe Victoria is also investigating the death of a private sector call centre employee amidst the suggestion that COVID-19 prevention was not taken seriously at his workplace. Following concerns that the workplace exposure site did not constitute a safe workplace or provide safe working conditions, the relevant union advocated for inquiries to be made into the circumstances of the employee's death.
Another avenue employees have used to challenge COVID-19 workplace measures is by filing industrial disputes. These matters have alleged that employers have breached applicable industrial instruments and/or WHS legislation, including their requirement to consult with employees.
In Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWC 6309, the Commission dismissed the union's application for interim relief to prevent the employer from taking "steps to dismiss, discipline or otherwise prejudice the employment" of any production and engineering employees who fail to provide evidence of being vaccinated against COVID-19. The union contended that the vaccination requirement was not a lawful and reasonable direction, that it was introduced without complying with the consultation obligations under the Work Health & Safety Act 2011 (NSW), and further that it was not specifically "directed at or formulated with regard to the circumstances at the mine".
The Commission accepted that there were serious questions as to whether:
Nonetheless, Deputy President Saunders held the balance of convenience did not favour the making of the order sought for interim relief. The inconvenience to the affected employees was said to only exist for a relatively brief period until the Full Bench delivers its decision in the matter, which is likely to be in early December 2021, and noting also the employer's undertaking to compensate employees for any unpaid wages in the relevant period if the employer is unsuccessful in the matter.
In another recent application, this time before the Queensland Industrial Relations Commission, the applicant in Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors  QIRC 356 sought declarations that mandatory COVID-19 vaccination and mask requirements were of no effect, beyond power and/or inconsistent with the relevant public sector legislation. The application was dismissed. On 22 October 2021, the QIRC found that:
In other Queensland matters about directions for mandatory vaccination:
Despite challenges to State Government Public Health Orders, recent decisions have highlighted that employers and employees in identified industries must comply with applicable government directions.
In Kassam v Hazzard; Henry v Hazzard  NSWSC 1320, the Court ruled in favour of the NSW Minister for Health and Medical Research, upholding various public health orders that require vaccination against COVID-19 in declared industries. The Court affirmed that the orders do not violate the right to bodily integrity as the orders do not authorise the involuntary vaccination of individuals. Rather, the curtailing of movement was found to be authorised under the Public Health Act 2010 (NSW).
More recently, the NSW Supreme Court has rejected a further challenge to NSW public health orders requiring mandatory vaccination in Larter v Hazzard (No 2)  NSWSC 1451. In this case, the plaintiff was a paramedic who asserted his religious freedoms and "conscientious objection" to mandatory vaccination. The plaintiff submitted that the orders under challenge were distinguishable from the orders found to be valid in Kassam v Hazzard; Henry v Hazzard, were broader than necessary (or too broad), were unreasonable and contravened the International Covenant of Civil and Political Rights. Justice Adamson rejected the submission that the orders impeded freedom of religion and religious expression under the ICCPR. Justice Adamson noted that religious freedom may be subject to limitations which are necessary to protect public health and that in any event, the ICCPR does not form part of Australian law. Importantly, the Court considered the nature of the employee's role and his contact with sick and vulnerable patients. Ultimately, Justice Adamson was not persuaded that the plaintiff had made out his claim for any of the relief sought.
The case of Ibrahim Can v State of New South Wales (2021/00265124) is also currently before the NSW Supreme Court, concerning a similar challenge to NSW public health orders.
In Simon Harding Ors v Brett Sutton Ors (S ECI 2021 03931) and Belinda Cetnar and Jack Cetnar v State of Victoria & Ors (S ECI 2021 03569), over 100 plaintiffs from the healthcare, construction and education sectors have sought relief in relation to Victorian directions concerning mandatory COVID-19 vaccinations. These proceedings are currently in progress.
The Queensland Government announced a new Direction on 10 November 2021 to mandate that all healthcare workers in the private health, aged care and disability sectors will be required to be vaccinated against COVID-19 by 15 December 2021.
The introduction of this Queensland Direction and the outcomes of the other NSW and Victorian challenges to public health orders will provide further insight into the enforceability of public health orders which to date have been unanimously upheld.
As vaccination policies continue to be adopted in an evolving COVID-19 climate, with many workplaces looking towards a "return to the new normal", employers should ensure they are well prepared to manage any legal and practical challenges that may raise.
Authors: Kathy Srdanovic, Partner; Julie Mills, Counsel; Sharni Nichols, Lawyer; and Gabriella Lubrano, Graduate.