John Larter was a NSW Ambulance paramedic who rose to fame during the Covid-19 pandemic – see https://australianemergencylaw.com/?s=larter. His latest case is Larter v Health Secretary in respect of NSW Ambulance [2024] NSWIRComm 1030.  This was the outcome of his complaint of that his dismissal from NSW Ambulance was ‘unfair’.

Employment and the need for COVID vaccinations

Mr Larter was first employed by NSW Ambulance in 1996.  At the time of his dismissal, he was employed as the station officer at Tumut station. ([13]-[14]).  

The requirement for health workers to be vaccinated against Covid-19 were first introduced by public health orders made under the Public Health Act 2010 (NSW) s7.  The Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021came into effect on 29 September 2021. It was replace by Order 2 (2021) on 22 October 2021 and by Order 3 (2021) on 23 December 2021 ([18]-[25]; see also https://legislation.nsw.gov.au/information/covid19-legislation/vaccination-health-care-workers).  A determination under the Health Services Act 1997 (NSW) s 116A was made by the Health Secretary, as the legal employer of NSW Health workers. The determination had the effect of altering the conditions of employment to require a Covid-19 vaccination. It was made on 12 November 2021 ([26].

On 20 September 2021 Mr Larter’s registration as a paramedic was suspended by the Paramedicine Board. That decision is the subject of an ongoing challenge in the NSW Civil and Administrative Tribunal (‘NCAT’) ([16]).  (It should be noted that at the date of writing this report, 3 July 2024, John Edward Larter is a registered paramedic and there are no conditions on his registration, even so the issue of action taken by the Paramedicine Board remains before NCAT – see Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023)).  

Mr Larter did not get vaccinated against COVID-19. The ‘show cause’ process began on 3 February 2022 and culminated in Mr Larter’s dismissal on 2 March 2022.  His application for relief under the unfair dismissal provisions was filed on 24 March 2022.

Following his dismissal another public health order, and a NSW Health Policy Directive confirmed the need for public health workers and NSW ambulance paramedics to be vaccinated against COVID-19 ([27]-[28]).

On 25 March 2024 after consultation between NSW Health and staff associations the requirement for COVID vaccination was withdrawn. COVID-19 vaccination is now recommended, not required ([7]).

The application

Mr Larter’s application was based on four grounds. They were ([5]):

1. The applicant was dismissed on the incorrect basis that he had contravened the Second PHO;
2. The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction;
3. The dismissal was procedurally unfair; and
4. The dismissal was harsh.

Ground 1 ‘The applicant was dismissed on the incorrect basis …’

Mr Larter’s first ground was that the dismissal was unlawful. In essence he argued that he was not in breach of the public health orders (‘PHOs’), and even if he was, the Determination made by the Health Secretary was not lawfully made.

The argument with respect to breach was that the PHOs provided that a person was not to work as a health worker whilst unvaccinated. Larter’s argument that given he took leave and was suspended by the Ambulance Service he did not, whilst unvaccinated, work as a health worker and there was, therefore, not breach ([63]).

The Commission found that even if some witnesses said the ground was a breach of the PHO, it was made clear to Mr Larter in the ‘The First and Second Show Cause Letters … that it was due to his inability to work arising from the operation of the PHO’s that they were considering the termination of his employment.’  That is he was dismissed because his decision not be get vaccinated made it impossible for him to do the work he was employed to do.

Ground 2 ‘The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction’

As the lawfulness of the Health Secretary’s determination the applicant made a number of submissions that are not necessary to report, but all of which were rejected. Fundamentally the Health Services Act allows the Secretary to unilaterally change the employment conditions of workers with NSW Health. Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 (quoted at [89] said:

This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise.

The purpose of the power in s 116A(1) is “to ensure a high measure of consistency in a large and diverse public sector organisation”: NSW Nurses’ Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees.

The decision by the Health Secretary to make it a condition of employment was a lawful direction.

Ground 3 ‘The dismissal was procedurally unfair’

This argument alleged deficiencies in the show cause process.  The Commission found (at [115]) that there was no evidence to support a claim that the applicant did not fully understand the issues that were being considered. As for an allegation that the CEO failed to consider the material Mr Larter put in response to the show cause letter, the Commission noted (at [116]) that Mr Larter

… failed to respond to the Second Show Cause Letter and therefore on one level there was nothing to consider. Notwithstanding this, the contents of the brief to the Chief Executive provides a sufficient basis for me to find that the respondent did in any event consider the applicant’s response to the First Show Cause letter as well as the applicant’s individual circumstances.

The decision to dismiss him was not procedurally unfair.

Ground 4 ‘The dismissal was harsh’

The next consideration was whether the decision was ‘harsh’.  Commissioner O’Sullivan said (at [120]-[121]):

Almost all dismissals will occasion hardship upon an individual who has been removed from their employment, but that does not make all dismissals harsh to the level that it renders that dismissal unfair. As I found in Welch, it is a matter of weighing up all the circumstances, including the reason(s) for the dismissal as well as the impact upon on the applicant.

In this matter, the applicant found himself in the same situation as all other employees who were faced with the prospect of meeting COVID-19 vaccination requirements to maintain his employment. For his own personal reasons, which have no bearing on my consideration of his application, he chose not to. Given this, the harshness visited upon himself is partly a consequence of his own choice and thus does not render the dismissal harsh for the purposes of the IR Act.

Result

Having rejected all of Mr Larter’s grounds to argue that the dismissal was unfair, his application was dismissed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the 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.