Australia, New South Wales Industrial Relations Commission, 8 June 2022, NSWIRComm 1040
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- The Industrial Relations Commission is established under the Industrial Relations Act 1996 (NSW) with conciliation and arbitral functions. The Commission exercises a civil (in its administrative role as the Industrial Relations Commission) jurisdiction
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Private and family life
- Industrial relations / Labor law
- Vaccination
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant sought relief for unfair dismissal from the NSW Police Service pursuant to Part 6, Chapter 2 of the Industrial Relations Act 1996 (NSW) on the basis of her not providing evidence of a COVID-19 vaccination. Vaccination was a requirement under a mandate issued on 7 September 2021 by the Commissioner of Police, NSW. The main right involved was the right to privacy in that the Applicant was to produce an Immunisation History Statement as recorded on the Australia Immunisation Register to her employer. The Applicant initially sought reinstatement and compensation but this was amended to monetary compensation. The Applicant also sought an amendment to her employment record from “unsuitable for re-employment” to “suitable for re-employment”. The Applicant was successful and was awarded fourteen weeks pay as compensation but the Commissioner conceded that they had no power to compel the Respondent to amend an internal document.
Facts of the case
In March 2021, the NSW Commissioner of Police issued a notice to employees titled “Information Collection Notice” which requested staff provide evidence of the COVID-19 vaccination if they had been vaccinated. The first information collection notice requires the provision of the employee’s “vaccination information” if required to do so by the employee’s manager, supervisor or Commander, or face the risk of “management action”.
On 7 September 2021 the NSW Commissioner of Police issued two further documents. The first document, “COVID-19 Vaccination Mandate direction” required all employees to be vaccinated against COVID-19 with the first dose to be received by 30 September 2021 and the second dose by 30 November 2021. The second document “Official Information Collection Notice COVID-19 Vaccination Information in response to COVID 19 Vaccination Mandate direction” required employees to provide a copy of the Immunisation History Statement as recorded on the Australian Immunisation Register or a copy of a medical contraindication certificate. Employees who had not received their vaccination by the required date would be stood down without pay or use their own entitlements (paid leave) until they had received their vaccination.
The Commissioner found that the second information collection notice completely contradicted the first information collection notice by stating that provision of a copy of an employee’s immunisation history statement as recorded on the Australian Immunisation Register was “requested”, not “directed or required”. In addition, there was no reference to possible “management action” for failing to comply with this request.
The Applicant objected to the request for the certificate or immunization history statement and claimed the request was for “private and unnecessary information”. The statement contains personal medical information which went far beyond evidence of a COVID-19 vaccination. The Applicant raised a grievance with her employer pursuant to the relevant Employment Award but this was not dealt with. The Applicant was stood down without pay on 1 October 2021 and resigned on 18 October 2021.
The Applicant claimed she was constructively dismissed. The Respondent argued she resigned and filed a Notice of Motion to dismiss the Application on the basis of want of jurisdiction of the Commission. The matter was dealt with on 10 March 2022 and determined that the Applicant was constructively dismissed and therefore the Commission had jurisdiction to hear the matter.
The Applicant never refused to get a COVID-19 vaccination. The Applicant did, however, raise concern with the reasonableness of the direction regarding its privacy requirement, the requirement to exhaust leave entitlements, the non-payment of her salary which followed and the overall implementation of the 7 September 2022 COVID-19 Vaccine Mandate Direction. The Applicant was vaccinated in November 2021 against COVID-19.
The Commissioner found that the request to provide an entire immunisation history certificate was “excessive” and “constitutes an unwarranted intrusion in to the employee’s privacy”. Furthermore that the NSW Police mandates and request for information were contradictory in that they requested evidence of a COVID-19 vaccination and complete immunisation history. The Commissioner held that the Applicant’s privacy concerns were treated as an attempt to obtain an exemption which was not the case.
The Commissioner concluded that the Applicant’s privacy concerns were never adequately addressed by the time she submitted her resignation. The Commissioner found that the Applicant’s suspension without pay was unwarranted and a “clear overreach” in response to the COVID-19 mandate direction. The Commissioner concluded the Applicant had been unfairly constructively dismissed. The Applicant was awarded monetary compensation of the equivalent of fourteen weeks’ pay.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Commissioner concluded that the Applicant’s dismissal was “unjust, unreasonable or harsh” due to:
1. The conflicting Information Notices issued by the Respondent in March and September 2021 in relation to COVID-19 vaccination requirements, more particularly what constituted “vaccination information”. Moreover, no satisfactory explanation was provided by the Respondent as to the contradictory Information Notices.
2. The requirement to produce a copy of an immunisation history statement as recorded on the Australian Immunisation Register, which records a person’s entire immunisation history. It goes well beyond what was necessary to enforce the Commissioner’s vaccination mandate direction which was also issued on 7 September 2021 and constitutes an unwarranted intrusion into an employee’s privacy.
3. The Applicant was entitled to refuse to provide her employer with a copy of her entire immunisation history certificate
4. The response to the Applicant’s internal grievance complaint by the respondent was unsatisfactory and her repeated complaints about legitimate privacy concerns were incorrectly treated as requests for an exemption or deferral from the requirement to become vaccinated against COVID-19.
5. The Applicant’s grievances were not dealt with by the Respondent in the timeframes outlined in Clause 9 of the Grievance and Dispute Settling Procedures in the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009.
6. The Applicant was stood down without pay and effectively suspended. Suspension of an employee from duty is a disciplinary measure which is available to be used in the public sector pending a decision in relation to misconduct, criminal charge or corrupt conduct pursuant to section 70 of the Government Sector Employment Act 2013 (NSW). The Respondent therefore had no basis to stand down or suspend the Applicant without pay.
Finally, the Commissioner concluded that “...the treatment of the applicant, in circumstances where she had legitimately challenged the respondent’s requirement/request to provide her entire immunisation history, which was clearly overreach by the respondent given the purpose of the Commissioner’s vaccination mandate direction, as if she had been charged with a serious criminal offence and remanded in custody, was inherently unfair.”
Conclusions of the deciding body
The Commissioner concluded that the Applicant’s privacy concerns were never adequately addressed by the time she submitted her resignation. The Commissioner found that the Applicant’s suspension without pay was unwarranted and a “clear overreach” in response to the COVID-19 mandate direction. The Commissioner concluded the Applicant had been unfairly constructively dismissed and awarded monetary compensation being the equivalent of fourteen weeks’ pay.
Fundamental Right(s) involved
- Right to data protection
- Right to privacy
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. data protection
- Health v. right to privacy (private and family life)
