Griffin v Health Secretary; Thorncraft v Secretary of the Department of Education [2022] NSWIRComm 1027 (22 April 2022) (Commissioner Murphy) is another case on covid vaccines. In this case the Industrial Relations Commission had to consider whether Public Health Orders, and determinations made by the Secretaries of the Ministries of Education and Health requiring employees to be double vaccinated against COVID-19, affected the Commission’s capacity to make orders in cases of alleged unfair dismissal.  The applicants were 10 health workers, and 2 education workers. All of ‘the applicants were dismissed for failing to comply with a directive from their employer to become double vaccinated against the COVID-19 virus by a certain date last year [2021] or to provide evidence of a medical exemption’ ([8]).

Those who hope the courts will rule on issues such as whether there really is a pandemic or whether the orders made are reasonable will continue to be disappointed. That is not the function of courts and certainly not the Industrial Relations Commission. At [37] Commissioner Murphy said:

… a considerable bulk of the submissions by some parties went to the validity and/or legality and/or enforceability of the Public Health Orders and Determinations set out … above, this Commission is not the forum in which to agitate such matters. These instruments will be accepted in this jurisdiction as valid and enforceable pieces of delegated legislation unless and until found to be otherwise in another place.

The Public Health Orders, and the departmental determinations were in place. The question before the Commission was how they affected the Commission’s jurisdiction, not whether the Minister or Departmental Secretaries either could, or should have made those orders or directions.

Education workers

The case for those employed by the Department of education turned on issues of their employment status as ‘temporary’ employees. Those cases are not relevant to the subject matter of this blog.

Health workers

The Public Health Orders applied to workers in several health fields including paramedicine.  The direction from the Departmental secretary was more limited, applying only to employees of the NSW Health Service.

Both the applicants, and the Department agreed that there was a distinction between the Minister’s Orders and the Department’s determination. The Public Health Orders required workers to be vaccinated, if they were not, they could not work in the health field. The determination from the Department went further and said that unvaccinated workers could not be employed by the Department. The applicants’ argued that the Commission could find that dismissing the employees was ‘harsh, unjust or unreasonable’ and could order that they be reinstated to their jobs even if they could not, presently, work.  They argued that they could be employed, but stood down, until the need for vaccination was removed ([41] and [42]).

At [48]-[49] Commissioner Murphy said:

Each of the applicants in the public health matters … would be, if reinstated to their former position, classified as a stage 1 health care worker for the purposes of the … Health Orders … As such, pursuant to clause 5 of the Fourth Health Order, they “must not do work as a health care worker unless the worker has had at least 2 doses of a COVID-19 vaccine”… In effect, the Fourth Health Order, which is currently in force, would prevent any of the applicants from doing the job into which they may be reinstated or re-employed by order or the Commission. This would render impracticable any order by this Commission for reinstatement or re-employment of any of the applicants in the public health matters.

Further, the Health Determination … has made it a condition of employment that all employees of local health districts, such as the applicants were prior to their dismissals, be double vaccinated against COVID-19 or hold a medical contraindication certificate. It is not open to the Commission, in this proceeding, to go behind the Health Determination and look at issues such as the medical and/or scientific basis or rationale for the making of the Health Determination by the Health Secretary. The Commission accepts that the Health Determination has been validly made and is now part of the industrial landscape for workers in the public health sector. It would be impracticable for the Commission to make orders which purport to restore the applicants to employment as NSW Health Service Employees … in circumstances where they do not satisfy an essential condition of that employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.

And at [55]:

… no order can be made in favour of any of the applicants for reinstatement or re-employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.

Discussion

In an earlier post Requiring COVID vaccines for emergency workers(April 1, 2022) I said ‘where the Minister or Chief Health Officer has exercised a power under relevant Public Health or emergency management legislation to issue an order or direction requiring certain workers to be vaccinated then the employer has no choice but to comply’.  This case continues that line of jurisprudence. The public health orders have been made – unless they are set aside by a court of competent jurisdiction (eg the High Court of Australia) employers, and in this case the Industrial Relations Commission have no choice but to comply. This case went further and held that where an employer (in this case the Departments) had set out that it is a necessary condition of employment that a person is vaccinated then the Commission could not order that the person be reinstated.

In should be noted that the Commission did not decide that it could not hear an application for unfair dismissal. There are other remedies, including the payment of damages. The Commission, in this case, was not entering into the question of whether dismissal was unfair, rather it was considering what it could do about. Given the public health orders and the determination made by the Secretary (noting that the power to make this determination was a statutory power – Health Services Act 1997 (NSW) s 116A(1) – not simply matter of a unilateral alteration to a contract of employment) the Commission could not order that the staff be reinstated to jobs that they cannot perform.

As Commissioner Murphy said (at [57]-[58]):

This determination … leaves open the possibility of orders being made for compensation… The parties have not been asked to address this aspect of the applications.

Further, the applicants, or some of them, may wish to reconsider their position with respect to vaccination and become vaccinated which would potentially remove the existing barrier to being employed in the NSW Health Service.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.