Latest developments in Australian COVID-19 workplace litigation

What you need to know

• The decision by many employers to require their Australian workforces to be vaccinated against COVID-19 has resulted in litigation in a range of claims in recent months.
• While some of these claims are currently still in progress, the decisions available highlight that the Fair Work Commission and courts recognise the important role employers play in managing the pandemic.

What you need to do

• Employers should carefully review their COVID-19 policies, plans and risk assessments in light of recent decisions and be prepared to deal with challenges to any policies and decisions, which are often brought on very quickly.

The broad range of COVID-19 workplace litigation

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.

Lawful and reasonable directions – Unfair dismissal and general protections 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:

Temperature checks and social distancing requirements

In Yordanos Fesshatsyen v Mambourin Enterprises Ltd [2021] 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 [2021] 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 [2020] 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."

Vaccinations

More recently, the Commission Full Bench in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] 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 [2021] 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:

• the obligations of employers to comply with Public Health Orders;
• the expectation that employees must be able to perform the inherent requirements of their jobs; and
• the need to objectively consider any alleged medical contraindication.

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 [2021] 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.

Mask wearing

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 [2021] 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:

• the policy requiring masks to be worn included a clearly documented exemption process for those unable to wear a mask due to medical reasons (which the applicant did not satisfy); and
• aviation is a "safety critical industry" and the employer was entitled to consider the relevant safety and reputational risks posed by the applicant's non-compliance with its policy.

Discrimination and general protections claims

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 [2021] 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)".

Privacy issues

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.

Workers Compensation claims and safety regulator investigations

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 [2021] 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.

Industrial disputes about a failure to consult, and applications for interim relief

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.

New South Wales

In Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] 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:

• the employer had complied with its consultation obligations before implementing the vaccination requirement; and
• the vaccination requirement was tailored to, and was formulated having regard to, the particular circumstances of the mine and the employees who work on it.

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.

Queensland 

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 [2021] 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:

• the argument that there is no power to vary the terms and conditions of employment to compel vaccination against COVID-19 is contrary to the terms of the relevant public sector legislation, inconsistent with the nature and structure of the employer, and "contrary to well- established principles of industrial law which recognise an employer's right to direct employees within proper legal constraints";
• the relevant awards did not require consultation on the direction because the direction did not concern "the way in which work is done"; and
• the employer had consulted with employees as "reasonably practicable", including with about 17,212 employees and unions "with total collective coverage of the workforce [who] agreed with the direction", so there was no breach of the Work Health & Safety Act 2011 (Qld).

In other Queensland matters about directions for mandatory vaccination:

• On 11 November 2021, in Shaun Cox v DP World Brisbane Limited ACN 130 876, QUD365/2021 Justice Logan of the Federal Court dismissed an application for interim relief and relied on the employer's undertaking not to terminate any applicant employee's employment before midnight on 31 December 2021 for not having been vaccinated against COVID-19 or not having provided evidence of such vaccination. The matter is listed for hearing on 20 and 21 December 2021.
• In Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275, the applicants have applied for statutory orders of review and declarations pursuant to the Judicial Review Act 1991 (Qld). This matter is listed to be heard before the Supreme Court of Queensland at the end of 2021.

Challenges to Public Health Orders 

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.

New South Wales 

In Kassam v Hazzard; Henry v Hazzard [2021] 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) [2021] 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.

Victoria

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.

Queensland

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.

Wrap  up

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.