University defends termination in COVID vaccination appeal

Ms Emma Frances Sommerville (the Appellant) lodged an appeal against a decision?(the Decision) of Deputy President Bell issued on 15 August 2022. The Decision dealt with an application brought by the Appellant for the Commission to deal with an allegation that she had been unfairly dismissed by the University of Tasmania (the Respondent/the University).

The Appellant was dismissed from her position as Operations Manager with the Integrated Marine Observing System (the IMOS) at the University on 21 February 2022, due to her not being compliant with the Respondent’s “COVID-19 Safety Procedure” (the Policy), and that as an inherent requirement of her role she was required to access the University premises. The Appellant submitted that the Respondent’s unlawful conduct gave rise to her unfair dismissal claim. The Deputy President rejected the Appellant’s submissions, finding that she was not unfairly dismissed.

In a decision for permission to appeal, permission was refused for the following reasons.

The Decision under Appeal

The Respondent is a leading Australian university, whose main campus is located in Hobart, Tasmania. The Appellant was first employed by the Respondent in about December 2013, initially in the position of Project Officer with the IMOS. In about December 2017, the Appellant’s position changed to Operations Manager with IMOS.

The Deputy President noted that evidence indicated that throughout her employment, the Appellant was a loyal and hardworking employee, who had never been disciplined in any way, nor otherwise investigated or had allegations made against her. She was a good long-serving employee.

The Appellant’s employment contract was signed on 16 December 2013. The substantive terms did not appear to have been changed upon her appointment as Operations Manager. The Appellant’s conditions of employment were also regulated by the?University of Tasmania Staff Agreement 2017 – 2021?(the Staff Agreement), which applied at the time of her dismissal.

During the period of March to November 2020, staff at the University, including the Appellant, were required to work from home in response to COVID. Throughout 2021, however, staff were permitted to (if not required to) work in their usual locations.

The Deputy President noted that, during 2021, a steadily increasing proportion of the adult population across Australia had received one or more doses of a vaccine in respect of COVID-19. In Tasmania, the Premier of Tasmania gave regular public statements on those matters and that State’s government response to managing COVID-19. The Premier also sought to “encourage people” to get vaccinated and stated “vaccination continues to be the best way to protect yourself and your family against COVID-19”.

On 17 October 2021, the Premier of Tasmania made an announcement that, as at 15 December 2021, the State of Tasmania would be reopening its borders again. Among other matters, the Premier’s statement recorded that “We know that once our borders are relaxed, COVID will come to Tasmania, make no mistake about that. However, we also know that if you are fully vaccinated, you are 90 per cent less likely to suffer severe symptoms, be hospitalised or die from the disease.” The statement recorded that, at that date, 70% of Tasmanians were fully vaccinated for those 16 years and over, and the Premier expected to achieve an 80% target by early November, based on the fact almost 86% of Tasmanians over 16 had had one dose by that time.

The University decided to consider mandatory vaccination based on the advice provided by the Australian Technical Advisory Group on Immunisation (ATAGI) that vaccination is the primary safe and effective control measure to protect individuals from contracting COVID-19.

On 10 November 2021, the University conducted a “risk workshop”. A number of senior staff from a range of areas and disciplines in the University attended, as well as risk advisory legal advisors. Ultimately the risk assessment concluded that the introduction of a mandatory vaccination policy was the most reasonable and practicable control measure (in the University’s view) to reduce the risks associated with COVID-19, following the opening up of the Tasmanian borders, to acceptable levels.

On 23 November 2021, the Vice-Chancellor of the University sent out an email to all staff. That email referred to the Tasmanian border opening on 15 December 2021 and how COVID-19 was already moving through communities elsewhere. The email stated that “We have a number of controls in place but there is no question that vaccinations are one of our strongest protections. Vaccines have been proven to be safe, effective and lifesaving”. The email then invited staff to complete an anonymous survey (the Survey), which the Vice-Chancellor stated would help inform the University’s next steps. The Appellant was critical of the form of the Survey, but the Deputy President found that the University’s assessment of the results fairly and correctly reflected the University population of staff and students.

The Appellant’s position, which the Deputy President accepted, was that at this stage, she did not agree with the proposition in the Vice-Chancellor’s email that “Vaccines have been proven to be safe, effective and lifesaving”. By this time, the Appellant had herself looked at a significant volume of material with a view about COVID-19 and related vaccinations, and the Deputy President accepted the depth and detail of the Appellant’s research.

The Survey received responses from about 2,100 out of around 3,000 staff and 2,000 out of around 20,000 on-campus students. For students, about 76% indicated their approval for the introduction of a mandatory vaccination policy and, for staff, the equivalent response was 83%. The survey results also indicated that 94.9% of respondents were fully vaccinated, as were 88.5% of students.

On 9 December 2021, the introduction of a mandatory vaccination procedure was communicated by the Vice-Chancellor by email to all staff and students. The communication stated that, by 15 January 2022, staff and anyone coming onto campus will be required to be fully vaccinated or have an exemption. The exemptions were not stated in that email. The email referred to the Survey (which it said showed “overwhelming support”) although it expressly recognised that a number of staff and students had taken a different view. It stated that for staff who were not vaccinated and did not meet the exemption, the University would look to find alternative arrangements, such as remote working, but also said “in many cases, this is not likely to be possible due to the nature of the work we do at the University.”

Also on 9 December 2021, the Appellant received an email from her manager at IMOS. That email asked for anyone to come and chat to her if they were not intending to be vaccinated. The Appellant did exactly that. On 15 December 2021, she spoke to her manager and voiced her concerns about the vaccine requirements and also said she would be willing to work at home. During that discussion, the Appellant was told that a committee was being set up to consider requests for alternative working arrangements.

On 23 December 2021, the University approved the Policy foreshadowed in the Vice Chancellor’s email on 9 December 2021. The Policy was slightly under five pages in length. The Policy has a section titled “Non-compliance”, which stated that, for staff, noncompliance without reasonable excuse may lead to disciplinary action, including termination of employment.

On 27 December 2021 and 4 January 2022, the University sent emails to the Appellant. Among other matters, those emails urged the uploading of proof of vaccination to the dedicated service portal by 15 January 2022. On 5 January 2022, the Appellant replied to the second email. Her email contained a list of questions regarding privacy concerns, including seeking information about the purpose of collection, the consequences if the information was not provided, the use or disclosure of any vaccination information, and how the Appellant might access that information including possible complaints about breaches of privacy obligations. A number of emails were exchanged on these issues thereafter, and the University also sent a number of group or individualised emails throughout January 2022, emphasising the vaccine mandate. While the Appellant criticised those emails as coercive, bullying and harassment, the Deputy President rejected that characterisation, and found some of the correspondence to be plainly appropriate.

The University also established a number of internal decision making and advisory processes in respect of its COVID-19 response. One such body was the Academic Division COVID Management Committee (the Committee). The function of the Committee was to ensure the University’s vaccine mandate was applied consistently and fairly, to consider short and long-term requests for flexible work arrangements, to consider requests for the medical exemption referral panel, and to ultimately consider the continuing employment of staff who did not comply with the Policy and whose position was unable to be done remotely.

On 21 January 2022, the Committee met, when it considered the Appellant’s circumstances (together with other staff members). At this stage, it was noted that the Appellant had not yet updated her vaccination status on the portal and the Committee resolved to follow up with the relevant manager at IMOS to assess whether the Appellant’s role could be performed from home indefinitely. The Committee also endorsed the position that, unless circumstances changed, the Appellant ought to receive a letter indicating that her employment was under review on about 28 January 2022.

The Committee again met on 24 January 2022. The Appellant’s sick leave was noted. Nonetheless, it remained unchanged that the Appellant would be sent the letter foreshadowed in the previous Committee meeting.

On 28 January 2022, the Appellant received an email that summarised parts of the earlier correspondence sent to the effect that the Appellant had not provided relevant information as to her vaccination status and the University had concluded she was non-compliant with the Policy. The email stated that she may be unable to perform the inherent requirements of her role. The email also stated that the University was reviewing her employment, which may include the termination of her employment. The Appellant was requested to respond by 3 February 2022, as the Appellant was on medical leave until that date. On 31 January 2022, the Appellant extended her medical leave until 10 February 2022

On 3 February 2022, the Appellant wrote by email to the Vice-Chancellor. The cover email stated her response to the COVID-19 Vaccination Mandate was attached and that she required a response within 72 hours. The attached document was a 2-page document (the 3 February Notice) which was unclear in parts, but which purported to establish a framework in which various contractual rights and obligations were formed. The 3 February Notice set out a number of legal bases that each purported to invalidate the Policy requirement that the University was seeking to apply.

On 4 February 2022, the University responded to the 3 February Notice, in a very brief email, which included the reply that?“The University is very confident that the vaccine mandate is lawful and reasonable.”

On 8 February 2022, the Committee again met, where it considered the Appellant’s circumstances (among other staff members). The Committee had previously concluded that the Appellant’s role required an on-site presence. Based on the correspondence received, it also formed the view that the Appellant did not intend to become vaccinated. The Committee concluded it was appropriate that a letter should be sent to the Appellant indicating that the termination of her employment was being considered and she would have an opportunity to provide information as to why that should not occur.

On 9 February 2022, the Appellant sent a second notice to the Vice-Chancellor (the 9 February Notice). It was essentially identical in form to the 3 February Notice. Also on 9 February 2022, the University sent an email to the Appellant enclosing a letter titled “Review of employment”, that stated that the Appellant was non-compliant with the Policy. The letter stated that, as the Appellant was non-compliant, she was unable to attend any University premises and she lacked the capacity to fulfil the inherent requirements of her role. She was advised that the University was now considering terminating her employment and was required to show cause by 11 February 2022 why her employment should not be terminated.

On 11 February 2022, the Appellant sent a document titled “Statement of Declination of Offer of entering into the University of Tasmania COVID-19 Safe Procedure” (the 11 February Statement). The 11 February Statement rejected any consent by the Appellant toward the Policy; stated that neither her employment contract nor the Staff Agreement authorised medical procedures; stated that University policies do not form part of the Staff Agreement; requested the University to cease harassing and discriminating against her; reiterated her privacy concerns; referred to the demands constituted by the 3 February Notice and 9 February Notice that had not been complied with; and referred to a further “Final Notice and Criminal and Civil liabilities letter” that would be separately sent to the Vice-Chancellor. The 11 February Statement made specific points about the Appellant’s ability to work from home.

Regarding the Appellant’s ability to work from home, the Deputy President accepted that at the time of the Appellant’s dismissal, she was working on a part-time basis, 3 days per week after returning from maternity leave in March 2020, and aside from the period of the COVID 19 lockdown when the entire IMOS staff worked from home, the Appellant spent all 3 days onsite, and aspects of her role required her to be on site.

On 14 February 2022, the Appellant sent a further notice to the Vice-Chancellor, headed “Notice to Principal is Notice to Agent, Notice to Agent is Notice to Principal” (the 14 February Notice). While in similar form to the 3 February Notice and the 9 February Notice, the 14 February Notice was more comprehensive, and stated more forcefully a number of the Appellant’s concerns and beliefs regarding COVID-19 vaccination.

On 15 February 2022, the Committee concluded that the Appellant did not intend to comply with the Policy and that her role required on-site presence. It recommended that the Appellant’s employment should be terminated because she could not perform the inherent requirements of her role while unvaccinated.

On 21 February 2022, the Appellant was sent a letter giving notice that her employment with the University was terminated effective on that date. The letter stated the Appellant was not compliant with the Policy requirements and that as an inherent requirement of her role required access to University premises, her employment was being terminated because she was unable to meet those requirements. The Appellant was to be paid in lieu of notice of termination.

The Deputy President began by consideration of what he defined as the?“initial question”?being whether the direction the University gave the Appellant to comply with the Policy was a lawful and reasonable direction. The Deputy President defined the secondary consideration as whether the Appellant’s role required her to be on-site, such that the Appellant was unable to perform the inherent requirements of her role. A tertiary set of questions, relating to the important steps concerning the specific matters to be considered under s.387 of the Act so as to render the dismissal unfair, were then outlined and answered

The Deputy President found that it was irrelevant whether the Staff Agreement or the employment contract expressly authorised the Policy, as the unwritten contract terms implied by law supplied the power,?and the duty to follow a lawful and reasonable direction is implied into all contracts of employment.

The Deputy President found the Policy was lawful,?and rejected each of the bases upon which the Appellant challenged the lawfulness of the Policy.

The Deputy President found the Policy to be a reasonable response to COVID-19 due to the University’s direct interest in its staff experiencing much milder illness, even if vaccination is unable to effectively prevent transmission of the illness itself.?The Deputy President observed that it was difficult to consider what further consultation could have been undertaken by the University, and any such consultation would not have changed the views of the Appellant, particularly noting the nature of the requests and demands made by the Appellant in the form of lengthy demands, based on incorrect views of the law, that effectively require the University to explain why a multiplicity of legal grounds raised are misconceived, as outlined in the 3 February Notice, the 9 February Notice, the 11 February Statement and the 14 February Notice.

Setting out the factors to be considered in s.387 of the Act to determine whether the Appellant’s dismissal was harsh, unjust or unreasonable, the Deputy Present accepted that that the Policy was a lawful and reasonable direction with which the Appellant was required to comply, and the Appellant’s failure to comply with the Policy constituted a valid reason for dismissal related to the Appellant’s capacity.

The Deputy President was satisfied that the Appellant was notified of the reason for dismissal and had an opportunity to respond, finding that the Appellant was notified of the reason for her dismissal prior to the decision to dismiss being made, in explicit, plain and clear terms. and had taken the opportunity to respond by providing opposition to the policy on several occasions.

The Deputy President found the Appellant was not unreasonably refused a support person and that her dismissal did not relate to unsatisfactory performance. Further, the Deputy President was satisfied that the Respondent was a large employer with a dedicated human resources function.

The Deputy President considered the University’s compliance with its obligations under the Staff Agreement where a termination is contemplated and was satisfied these obligations were complied with.

Having considered each of the matters specified in section 387 of the Act, the Deputy President was satisfied that the dismissal of the Appellant was not harsh, unjust or unreasonable, and the Appellant was not unfairly dismissed within the meaning of section 385 of the Act.

Principles of Appeal

An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.?There is no right to appeal and an appeal may only be made with the permission of the Commission.

The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

The public interest test in s.400(1) is a discretionary one involving a broad value judgment.?The public interest is not satisfied simply by the identification of error, or a preference for a different result. In?GlaxoSmithKline Australia Pty Ltd v Makin?a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.?However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.

However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Receipt of further evidence in the appeal

Before turning to consider the grounds of appeal advanced by the Appellant, the Full Bench first dealt with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence, however it is by no means a matter of course that it will do so.

Principles relevant to the exercise of discretion to admit new evidence or to consider further material were considered in?Akins v National Australia Bank?(Akins)?in which the New South Wales Supreme Court identified three conditions that it would need to be satisfied of before the discretion might be exercised to admit further evidence. Firstly, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Secondly, it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. Thirdly, the evidence must be credible.

[48]?The evidence that the Appellant sought to adduce on appeal was:

• (a) A report by P.M. Altman dated 9 August 2022, titled ‘The Time of Covid’?in relation to the regulatory status of the COVID-19 gene-based Vaccines;
• (b) A report by Aseem Malhotra dated 22 September 2022, titled ‘Curing the pandemic of misinformation on COVID-19 mRNA vaccines through real evidence-based medicine’;
• (c) A newspaper article dated 5 November 2022, titled?‘Psychological injury’: NSW teacher wins compensation payout over handling of vaccine mandate’?relating to an apparent decision whereby a teacher received compensation for the manner of her dismissal pursuant to a vaccination mandate; and
• (d) A decision of the Commission in?Mr Stephen Allan Taylor v Sydney Trains.

Having reviewed the additional material the Appellant sought to adduce on appeal the Full Bench declined to admit that evidence. Their reasons for that decision are that while the Decision was dated 15 August 2022, and the reports, newspaper article and decision were published shortly before the Decision or thereafter, such that they were not clearly available to the Appellant to be adduced with reasonable diligence in the proceedings before the Deputy President, the Full Bench was not persuaded that the evidence is highly probative such that there is a probability a different outcome would have resulted at first instance.

The evidence that the Appellant sought to adduce principally relates to the reports of P.M. Altman and Aseem Malhotra, as the Appellant can clearly refer the Full Bench to decisions of the Commission and other jurisdictions. The Deputy President’s task at first instance was to consider the lawfulness and reasonableness of the requirement to comply with the Respondent’s policy that required vaccination against COVID-19.

The Full Bench was not persuaded that the reports of P.M. Altman and Aseem Malhotra are evidence that is highly probative such that there is a probability the Deputy President would have reached a different outcome at first instance. They refer, in the case of P.M. Altman, to the provisional approval of vaccines, and an assertion that COVID-19 vaccines neither prevent infection, nor prevent transmission of the infection, and in the case of Aseem Malhotra to an assertion of there being in the younger population a greater risk of serious adverse events from the vaccines than hospitalisation, because so few of the younger population are hospitalised due to COVID-19. Those propositions would not have displaced the clearly reasoned conclusions of the Deputy President clearly expressed in the Decision.

Given the Full Bench's findings, there was no need to consider the credibility of the evidence. The Full Bench refused leave for the Appellant to adduce further material.

Grounds of Appeal

In the Appellant’s Notice of Appeal, the Appellant outlined seven grounds of appeal and ten significant errors of fact, as follows:

• 1.The decision was made without taking into account Prima Facie material evidence and associated submissions and documents submitted by the Applicant in both the initial submission, submission in reply, orally during the hearing and the documents provided to the Deputy President at his request subsequently to the Hearing (refer to PN1005 of transcript).
• 2.Although the Commission is not bound by the rules of evidence, they are relevant and cannot be ignored where it would cause unfairness between the parties [1].
• 3.Commission members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’ [2]. The Appellant contends that failure to take into account the above evidence has caused unfairness between the parties and the Deputy President has not acted in accordance with notions of procedural fairness and impartiality.
• 4.The Appellant contends that the Deputy President has acted in a biased prejudicial manner towards the Applicant.
• 5.The Appellant also contends that the Deputy President did not properly characterise the unfair dismissal claim with the questions considered, namely “compliance with the Policy that required vaccination against COVID-19 for any on-site work –was a lawful and reasonable direction? It being clear that the direction was not complied with, a secondary consideration is whether the Applicant’s role required her to be on-site, such that the Applicant was unable to perform the inherent requirements of her role.”
• 6.The Appellant contends that the considered questions were not impartial and favoured the Respondent. The Deputy President firstly needed to consider whether the Respondent obeyed the law, contractual duties, and University Policies and Procedures in carrying out the Applicant’s dismissal.
• 7.Additionally, under Section 387(a) of the FW Act the Deputy President stated that “...I find that there was a valid reason for the dismissal related to the Applicant’s capacity”. The Appellant argues that, firstly, conduct would need to be found to be a valid reason for dismissal before capacity could be considered. Therefore, conduct and capacity would need to be valid reasons for dismissal (see point 12).
• Significant errors of fact, are not limited to, but include the following:
• 8.The Deputy President did not take into account that the University of Tasmania Staff Agreement 2017-2021(Agreement) makes it clear that University Policy, Procedure and Guidance do not form part of the Agreement.
• 9.The Deputy President did not take into account that the Applicant believed and submitted evidence that her personal safety was in real danger if she complied with the University of Tasmania COVID-19 Safety Procedure (Policy) by participating in an on-going COVID-19 clinical trial claimed vaccination program.
• 10.The Deputy President concluded that consultation under the Work Health and Work Health Safety Act 2011(Cth) and the Agreement were adequate. The evidence does not agree. See also Jonathan Mitchell v University of Tasmania (C2022/3507)(31 August 2022).
• 11.Procedural fairness was not shown to the Applicant. The Applicant did not receive the
• Policy until 18 January 2022. The Policy stated “Requests for exemptions are to be made at least 10 days before the person is required to be vaccinated under this procedure...”. The Policy took place from 15 January, effectively rendering obtaining an exemption from a doctor impossible.
• 12.The Policy stated in section 2.7 that “If a staff member, consultant or contractor, without reasonable excuse, does not comply with this procedure, the University, may take disciplinary action against that person, which may include termination of employment or engagement”. The Respondent did not produce evidence that disciplinary action in line with the Agreement (Part J) was undertaken and the Applicant that the principle of procedural fairness was observed.
• 13.ATAGI maintain that vaccination is voluntary and ATAGI’s Australian Immunisation Handbook states that one of the criteria for legally valid consent is that “It must be given voluntarily in the absence of undue pressure, coercion or manipulation”. The Respondents’ direction to mandate the claimed COVID-19 clinical trial Vaccine was in direct violation of this. Due to threats and menace with regard to ability to maintain one's livelihood rendering the policy unlawful illegal untenable.
• 14.The Deputy President did not acknowledge that the Applicant need not perform inherent requirements entirely from home since the mandate/policy/procedure was not a lawful or reasonable barrier to the Applicant attending the place of employment nor does it render the employee a risk to any other employees or students. The evidence weighs in favour of the dismissal being harsh, unjust and unreasonable.
• 15.The Applicant produced evidence of ongoing sick leave and the Respondents behaviour of bullying and harassment. The claims of bullying and harassment were not adequately addressed in weighing up the Deputy President’s conclusion, nor was the absolute irrefutable prima facie physical material evidence that no fully approved covid-19 vaccines exist in AUSTRALIA as they are all provisionally approved for on-going clinical trials only.
• 16.This absolute fact makes the policy direction illegal unlawful untenable the respondent lawyer admitted if it was a clinical trial the direction policy would be unlawful.
• 17.The direction policy is 100% unlawful unreasonable untenable breach of work place health and safety laws all ignored by the ruling.

Having considered the Appellant’s submissions and all the materials filed on appeal, the Full Bench was not satisfied that there is an arguable case of error. The Full Bench considered that the Appellant’s grounds of appeal and submissions are merely an expression of her dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of the case as put to the Deputy President at first instance. In particular:

(a) Grounds 1 to 3 – Contrary to the Appellant’s assertions, the Deputy President considered, in a most detailed fashion, the evidence and submissions of the Appellant. Where such evidence and submissions were not accepted, reasons were provided.

(b) Grounds 4 to 7 – The questions posed and answered by the Deputy President were standard expressions of the relevant questions to be addressed in unfair dismissal proceedings involving non-compliance with a COVID vaccination policy. No bias or prejudice could rationally be asserted against the Deputy President. There can be no error asserted in the Deputy President considering capacity?or?conduct of the Appellant as that is the specific consideration outlined in the Act.

The Appellant has also alleged significant errors of fact in the Decision. The Full Bench took these submissions into account and did not find any arguable case of error, let alone appealable error, in these findings. In particular:

(a) Ground 8 – Contrary to the Appellant’s assertion, the Deputy President noted the Appellant’s submission regarding the Staff Agreement,?and made findings regarding the legal basis for the Policy that did not involve the Staff Agreement.

(b) Ground 9 – The Deputy President specifically acknowledged the apprehension of the Appellant regarding vaccination.

(c) Ground 10 – The Deputy President gave detailed and considered reasons for his conclusion that consultation was adequate, and there was overwhelming evidence supporting that conclusion.

(d) Grounds 11 and 12 – Contrary to the Appellant’s assertions, the Deputy President clearly considered, and was satisfied of, the notification of the reasons for termination and the procedural fairness afforded to the Appellant.

(e) Grounds 13 to 17 – The Deputy President dealt in a most detailed fashion with the Appellant’s arguments regarding the lawfulness of the Policy,?and the Appellant’s assertion that she could work from home.?The Appellant’s arguments were appropriately characterised but nonetheless, and for detailed reasons, rejected.

The Full Bench was not satisfied that the Appellant identified any error in the Deputy President’s reasoning or the conclusion he reached. The Deputy President applied the law in an exhaustive and orthodox manner.

Further, the Full Bench considered whether this appeal attracts the public interest, and was not satisfied that:

• (a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• (b) The appeal raises issues of importance and/or general application;
• (c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
• (d) The legal principles applied by the Deputy President when compared with other decisions dealing with similar matters.

Conclusion

For the reasons set out above, the Full Bench was not satisfied that it would be in the public interest to grant permission to appeal and permission to appeal was refused.