The Federal Circuit and Family Court decision in Xue v ALDI Foods Pty Ltd [2025] FedCFamC2G 911 has provided useful guidance on the Court’s expectations for employers, cautioning against overly technical arguments, where such actions interfere with the Court’s ability to resolve matters as quickly, inexpensively and efficiently as possible.

Background

Mr Xue was employed by ALDI Foods Pty Ltd (ALDI) for approximately 3 months before being dismissed for his failure to satisfactorily pass his probation period. Mr Xue subsequently commenced general protection proceedings, alleging that ALDI dismissed him in retaliation for his inability to work weekends due to his mother’s ill health.

On 18 June 2024, Mr Xue filed originating documents to commence proceedings almost six months outside of the statutory deadline.

The proceedings were initially listed for 20 December 2024. However, ALDI did not attend the proceedings as Mr Xue had failed to serve ALDI with the originating documents. The Court made orders requiring Mr Xue to:

“a. serve a copy of these orders, and copies of the originating documents filed on 18 June 2024 on the respondent by 4:00pm on 23 January 2025; and

b. file and serve an Affidavit of Service demonstrating compliance with order 1 above by 4:00pm on 6 February 2025” (December Orders)

The matter was re-listed for 19 February 2025. During these proceedings, ALDI’s solicitors foreshadowed that they intend to make a default judgment (to dismiss the proceedings) on the basis that Mr Xue had failed to file and serve the required affidavit of service, which was in contravention of order 1(b) of the December Orders. For context, the purpose of this document is to prove that Mr Xue had correctly served ALDI with a copy of the originating documents (i.e. the details of Mr Xue’s claim).

Decision and commentary on employer obligations

In delivering her judgment, Judge Given observed that if ALDI had pressed for a default judgment, on the basis that Mr Xue had failed to comply with order 1(b) of the December Orders, the application would have been misplaced and would not have succeeded. In this respect, her Honour stated that ALDI’s appearance at the directions hearing itself demonstrated that the originating documents had come to its attention.

While noting that ALDI was not a public litigant, her Honour drew upon the principles underpinning the model litigant obligations, stating:

“The model litigant obligation, in its first ever expression at common law in Australia specifically referred to an obligation (on public litigants) to refrain from taking unnecessarily technical points. While not a public litigant, I express surprise that the respondent, being a relatively well-resourced corporation, would take such an unnecessarily technical position against an unrepresented litigant in circumstances where, clearly, the need for an Affidavit of Service had been overtaken by the fact of its appearance in the proceedings and, more specifically, at the directions hearing before me.”

Judge Given further stated that seeking a default judgment on a minor technical point, would have been inconsistent with the Court’s overarching purpose:

“The overarching purpose of this Court’s practice and procedure to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, is not met by such an approach. Parties have a duty to conduct the proceedings consistently with the overarching purpose and their lawyers must act in a manner which takes that duty into account.”

Key takeaways

While Mr Xue’s claim was ultimately dismissed due to being filed out of time, the case serves as a cautionary reminder for employers about the standard of conduct expected in legal proceedings.

Courts are unlikely to entertain overly procedural or technical arguments that do not meaningfully advance the resolution of the dispute, particularly where such arguments result in unnecessary delay or cost. This is especially relevant in matters involving self-represented litigants, who may not have access to the same legal resources or knowledge.

While employers are entitled to defend claims, the Court expects a proportionate and considered approach. Attempts to benefit from minor procedural missteps, risk being viewed as inconsistent with the overarching purpose of the Court to justly and efficiently resolve disputes.

If any further information in relation to any aspect of this article or for specialised employment law advice, contact Workdynamic Australia.

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

Late last month, the Fair Work Commission (FWC) found that a Victorian council worker was unfairly dismissed after his employer incorrectly attributed alleged discriminatory comments to him in a workplace investigation.

This case highlights how a poorly managed internal workplace investigation can result in:

1. Significant reputational damage for an employer and its HR team, as many deficiencies of the council’s workplace investigation are now a matter of public record.
2. Significant and lengthy legal exposure, in that the employer must now wait to see whether the FWC will order the employee’s reinstatement or award compensation.

In this case, the employer terminated the employee’s employment, relying on its substantiated findings, which included that, during a toolbox meeting, the employee stated that an Acknowledgement of Country was “not necessary” and that, Aboriginal and Torres Strait Islanders do not “deserve an acknowledgement at the start of meetings”.

The FWC decision offers valuable lessons on the need for fair workplace investigations and the implementation of reasonable and proportionate disciplinary action, including:

• Ensure evidence is accurately interpreted and applied: In this case, the council wrongly stated in its show cause letter to the employee that he had confirmed making the alleged comments about the Acknowledgement of Country. However, during the investigation, the employee had in fact denied making the alleged comments and instead had said that he had questioned whether an Acknowledgement of Country was necessary and why past and present servicemen were not also acknowledged, and expressed his opinion that Acknowledgements of Country are at risk of being overused.
• Ensure findings are supported by available and credible evidence: The employer relied on adverse findings it made about the employee’s tone and behaviour. However, the FWC found that the employer failed to produce any witness evidence from its investigation to substantiate its findings, including any evidence that the employee’s comments were delivered in a disrespectful, sarcastic, or aggressive tone as alleged.
• Carefully assess all evidence: Investigators must consider tone, intent, and context before concluding that conduct is inappropriate. In this case, the employee explained during the investigation that he questioned why Acknowledgement of Country was necessary because it was the first time it had been done at a toolbox meeting, in his approximate 7 years of employment with the employer. Whilst the employee’s position was that it had very strong expectations that Acknowledgements of Country should be conducted at all formal meetings, the FWC noted that this had not occurred at its own meeting with the employee during the investigation process, and at which the employee had an indigenous support person present. These circumstances should have been relevant to assessing the reasonableness of the employee’s conduct.
• Allegations of serious misconduct must be well-founded and supported by evidence: In this case, the employer concluded that the employee had engaged in serious misconduct by breaching the employer’s code of conduct and equal employment opportunity policy, and because the employee had already received a final warning in 2023 for similar breaches. The FWC was critical of this conclusion for many reasons, including that the employee contested the 2023 final warning. Further, the FWC was not persuaded by the employer’s evidence about the level of training, if any, the employee had received in relation to its policies.

The FWC made it clear that:

• Even if the employee’s comments about the Acknowledgement of Country were inappropriate, the punishment to sack him ‘did not fit the crime’.
• It did not agree with employer’s position that it had a valid reason to terminate the employee’s employment, which effectively rested on the premise that its employees must, without question, both subscribe and adhere to its views when it comes to Acknowledgements of Country.

Notably, just two days after this decision, the Federal Court delivered its ruling in the Lattouf v ABC unlawful termination case. Whilst the Lattouf case will be the subject of much legal analysis in the coming weeks, it is now clear that employees are protected from dismissal for reasons including either holding a political opinion, or expressing it in the workplace.

Now more than ever, employers must implement robust investigative practices and resultant disciplinary outcomes when dealing with nuanced and sensitive matters involving potential legal issues, such as discrimination and freedom of political expression.

To minimise reputational and legal repercussions, internal HR teams should always consider whether such matters could benefit from the independent and specialist expertise of external investigators and employment law support.

As the 2024–25 financial year has now come to an end, it’s timely to share some important developments in employment law and workplace investigations, based on recent court decisions, our work with clients and impending or anticipated changes to workplace laws.

You can download our detailed update here, which includes relevant takeaways and practical recommendations employers should consider to stay compliant and reduce legal risks, in the new financial year.

We have set out a quick snapshot of our update below:

Bonus Payments

Two ex-employees have successfully challenged in the Federal Court the withholding of their ‘earned’ bonuses by their employer after they resigned.

Bonus arrangements need to be carefully drafted, so that an employee’s entitlement to a bonus does not arise until the relevant point in time.

Incorporating Policies into Employment Contracts

The High Court’s decision in Elisha v Vision Australia illustrates that there can be significant consequences for employers who create binding obligations on themselves by incorporating their policies into employment contracts.

Employers need to carefully assess the legal risks of choosing to incorporate or not incorporate their policies into employment contracts.

Termination Payments

Courts are strictly enforcing employer breaches of late termination payments of statutory entitlements, such as payment in lieu of notice of and accrued but untaken annual leave, even for relatively minor delays.

Employers need to ensure that they are able to process termination payments on an employee’s last day of employment, to avoid this potential legal exposure.

Wage Theft Laws & Payroll Compliance

Wage theft laws are now in place, meaning intentional underpayments by employers may result in criminal charges and significant penalties.

Employers need to act promptly and obtain legal advice as necessary, to resolve any known issues resulting in non-compliance.

The Fair Work Ombudsman’s new Payroll Remediation Guide provides a handy guide of its ‘best-practice’ expectations in relation to payroll remediation.

Non-Compete Clauses

Expected legislation will ban non-compete clauses for employees below the high-income threshold from 2027.

If non-compete clauses are an important protection tool for your organisation, it is now important to explore alternative safeguards to protect legitimate business interests of an employer and its confidential information.

AI in the Workplace

AI tools can raise WHS, discrimination, and confidentiality risks in the workplace.

Employers should proactively develop strategies to manage AI-related risks, such as by creating an AI usage policy, assessing the psychosocial risks of implementing AI tools in the workplace, and training managers as to how to appropriately use AI tools for employment-related decisions.

Flexible Work & WHS Obligations

There is a continuing demand for hybrid work and flexible work arrangements.

However, employers must ensure that they do not overlook their WHS obligations when considering hybrid work arrangements.

If flexible work arrangement requests are refused, employers need to provide defensible, detailed and clearly communicated written reasons to the employee.

Payday Superannuation

Expected legislation from July 2026 will require employers to pay super at the same time as wages. Now is the time to start reviewing payroll systems to ensure real-time compliance.

Psychosocial Hazards: New Regulations in Victoria

Victoria is expected to introduce new psychosocial hazards regulations to come into effect by 1 December 2025. If passed, employers will have clearer guidance on how to identify and control risks to protect workers from psychological hazards like bullying and harassment.

Employers subject to the OHS Regulations in Victoria can begin preparing for the proposed amendments now by reviewing their WHS policies and procedures to ensure that they are equipped for these changes.

Workplace Investigations

The demand for workplace investigations is rising.

Poorly handled workplace investigations can result in reputational impact and/or legal exposure for employers. This has been highlighted by a few internal workplace investigations that have recently come under scrutiny by the Fair Work Commission.

To mitigate these risks, employers must ensure their internal teams are properly trained in investigative procedures and recognise when complex, high-risk, or sensitive matters warrant the engagement of external specialists.

Need help navigating these changes? Contact the expert team at Workdynamic Australia for tailored advice and support.

Sydney & Melbourne
02 8521 6486 | 03 9642 8324

 

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

 

 

We are thrilled to announce that Gella Rips has been promoted to the Position of Director at Workdynamic Australia, effective 1 July 2025.

“I am thrilled to be commencing in the role of Director at Workdynamic Australia. Working alongside such a talented and committed team has been incredibly rewarding, and I’m looking forward to supporting the firm’s continued success and delivering the trusted, high-quality service our clients know and rely on.” Ms Rips said.

A talented employment lawyer, Gella commenced in the role of Executive Counsel with Workdynamic in January 2022. She is passionate about providing clients with commercial and strategic advice across the full spectrum of legal issues, including:

• award and payroll compliance
• transfer of business
• contract and policy development
• restraint of trade
• enterprise bargaining
• restructures
• managing ill and injured workers
• workplace investigations, and
• executive terminations.

Gella regularly provides workplace training on bullying, discrimination, sexual harassment and effective grievance resolution. She holds a Masters of Labour Law and Relations from the University of Sydney and has been named a ‘Rising Star’ in the Doyles Guide for 4 consecutive years.

Gella’s calm and practical approach to legal issues has made her invaluable to the work of our firm over the last three and a half years, and we look forward to seeing her thrive in this new and exciting role.

For any enquiries, you can reach out to our Sydney office at (02) 8521 6486 or submit a message on our website.

Workdynamic Australia is excited to announce that we have been nominated as finalists for the Australian Law Awards Workplace Relations and Employment Team of the Year for the sixth consecutive year.

We are thrilled to have received this recognition and congratulate all other firms who have been nominated.

The prestigious awards are judged on criteria which is “both qualitative and quantitative, acknowledging growth, business development, diversity, leadership, innovation, business excellence and contribution to Australia’s legal sector”. The awards highlight collaborative teams who meet the urgent needs of clients and who are thought to be thought leaders in their fields.

We are looking forward to celebrating with other leading professionals in the legal industry at the Australian Law Awards Night in August and thank our clients, our dedicated legal and support teams, and our Directors for their leadership.

Workdynamic Australia is pleased to reveal that we have been recognised in the Best Lawyers of Australia 2026 publication in the following categories:

• Tier 1: Occupational Health and Safety Law
• Tier 2: Labour and Employment Law

In addition to the peer-reviewed accolade for the firm, Director Kathy Dalton has also been acknowledged as a ‘Best Lawyer’ individually, as she has been each year since 2014!

These awards are of particular merit in that Best Lawyers’ assessment of submissions is conducted through analysis of client and professional references, information about the firm, lawyer evaluations, and industry leading interviews. Submissions are assessed comparatively with others in the same area of law and region, and subsequently ranked by ‘Tiers’.

This recognition is a testament to the hard work, dedication and expert knowledge of Kathy and all of the wider Workdynamic Team.

Fleet company not required to reverse course on dismissal of ship’s captain (despite procedural fairness failings) 

The Fair Work Commission’s (FWC) unfair dismissal decision in Paul James McAllister v Ahoy Club Fleet Management Pty Ltd [2024] FWC 2651 has provided useful guidance about a situation where the employer had a valid reason for dismissal but had erred in not giving the employee a chance to respond to allegations before making the termination decision.

Deputy President Cross found that, given the Applicant’s safety breaches and gross negligence, the employer’s failure to give him an opportunity to respond to allegations was not a sufficient reason to find that the dismissal was harsh, unjust or unreasonable.

Background

Mr McAllister worked for Ahoy Club Fleet Management Pty Ltd (Ahoy) as the Captain of the motor vessel “Rascal” (the Vessel).

Ahoy terminated Mr McAllister’s employment on 31 May 2024, saying that he had breached his contract and company policies. Specifically, Mr McAllister was responsible for the Vessel when it collided with a port channel marker, causing approximately $150,000 of damaged and almost severely injuring a deck hand.

As part of a collision incident investigation, Mr McAllister blamed the crash on distracting questions from guests, dark and windy conditions, a narrow channel, fatigue, and time pressures.

However, Mr Dean Alexandre, Ahoy’s Yacht Manager (who conducted the collision incident investigation), formed the view that Mr McAllister had committed several safety breaches, including failing to arrange a lookout, abandoning the bridge while the Vessel was underway, switching off radar equipment, failing to sound the alarm and muster the crew and guests, and leaving one guest completely unsupervised on the bridge. Mr McAllister was also seen on security footage at the helm of the Vessel scrolling on his phone and vaping.

Mr McAllister was informed of the outcome of the collision incident investigation and the termination of his employment on the same day. He was not provided with a separate opportunity to respond to any allegations regarding his conduct.

Decision on Reason for Dismissal

DP Cross accepted that Mr McAllister’s substantiated conduct provided a valid reason for dismissal. The substantiated conduct, including safety breaches, constituted serious misconduct as defined in clause 1.07 of the Fair Work Regulation 2009.

DP Cross said that the main defect causing the collision was there being no lookout posted in the bridge at the relevant time. Mr McAllister’s fatigue, as a defence to this point, was seriously doubted. DP Cross also said that, even if this were true, “the Applicant was responsible for managing the fatigue of himself and the crew” including with watch schedules and staffing levels.

Decision on Procedural Fairness

One of the matters to be considered in any unfair dismissal matter is whether the employee had an opportunity to respond to the reasons for dismissal. In this matter, Mr McAllister had an opportunity to participate in the collision incident investigation but once the results of that investigation were known he was not provided a separate opportunity to respond to the allegations about his alleged conduct.

DP Cross referenced the Full Bench of the FWC decision in Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 in saying that, for misconduct generally, two questions should be considered when procedural faults are established. They are:

• Did the seriousness of the misconduct outweigh any procedural faults? and
• Would the procedural faults have affected or altered the ultimate outcome of the dismissal?

DP Cross commented that the seriousness of the misconduct here heavily outweighed any procedural faults, and even if Mr McAllister had been given an opportunity to respond it would not have affected the ultimate decision to dismiss him from employment.

Key Take-Aways

This case highlights some important considerations for dismissal decisions, namely that:

1. To ensure a defensible and procedurally fair process, employers should make sure that employees have an opportunity to respond to reasons for dismissal (even if the employee has already participated in a workplace investigation or safety investigation). This usually involves:
   • notifying the employee that the employer is contemplating terminating their employment (and the reasons for that potential decision); and
   • providing the employee an opportunity to ‘show cause’ why that decision should not be made.
2. However, the fact that an employer has not provided a worker procedural fairness in all aspects will not necessarily mean that the dismissal is ‘harsh, unjust or unreasonable’; and
3. A dismissal will still be upheld if the misconduct is sufficiently serious and the procedural faults would not have altered the ultimate outcome of the dismissal.

If any further information in relation to any aspect of this article or for specialised employment law advice, contact Workdynamic at https://workdynamic.com.au/contact

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

Authors: Anna Kovalsky, Executive Counsel and Zeb Holmes, Senior Associate.

Managing Risks and Responsibilities as an Employer

With the end of year festivities well upon us, many employers will be hosting celebrations with their employees. However, this time of year serves as a timely reminder to employers that poor management and planning can make end of year celebrations (and their aftermath) a very sobering encounter.

In this article, we set out tips for employers on how to minimize the risks of end-of-year events and help ensure a safe and memorable celebration for all.

Employer responsibilities and minimising risk

Employers owe an overarching duty to take all reasonably practicable steps to prevent the risk of injury in the workplace.

It is well accepted by the Courts that any event arranged by the employer for its staff will be considered part of the ‘workplace’. This means that an employer will be liable for any inappropriate or unlawful behaviour that occurs, if they have not taken all reasonable steps to prevent such conduct. This responsibility may also extend to events occurring at unofficial after-parties.

End of year celebrations can be a great time for team bonding and morale boosting. Unfortunately, at times, a celebratory environment can lead to poor decision making, inappropriate conduct or employee injuries. This may put employers at risk of legal claims, such as, claims relating to sexual harassment, bullying, discrimination or workplace injuries.

Some practical steps that employers can take to provide a safe celebratory environment include:

• Develop and implement policies around appropriate workplace behaviour and refresh the expectations with employees about what is considered acceptable behaviour and conduct before the Christmas party or end of year event.
• Limit the amount of alcohol supplied at the event and ensure food is provided especially in circumstances where alcohol is being served.
• Opt for an option where alcohol is being served by venue staff as opposed to employees self-serving their own drinks.
• Set clear start and finish times for the event.
• Consider whether employees are able to leave the venue and go home safely. In addition, employers may consider providing taxi vouchers, private transport or travel reimbursements to facilitate staff getting home safely.

What happens if inappropriate behaviour does occur at an end of year celebration?

If a complaint arises about behaviour at the end-of-year event, employers need to make sure that the complaint is dealt with promptly and that it is investigated if required.

Employers may wish to consider taking the following steps:

• Offer counselling or support services to any affected employee.
• Consider whether any interim action is appropriate while all the facts are being gathered (for example, this could include suspending an employee who is alleged to have acted inappropriately or making any other change to their working arrangements).
• Communicate effectively with the parties involved and ensure fair and equal treatment.
• Conduct a timely and thorough investigation into the alleged incident (or engage an external investigator to provide this service for you).
• Consider whether the venue where the alleged incident occurred has CCTV footage and make a request for a copy as soon as possible because CCTV is often overwritten within a short timeframe.
• Seek legal advice if dismissal is being considered.

Key Takeaways

Whilst end of year celebrations are a great opportunity to celebrate the year’s achievements with employees, there can be significant repercussions should something go wrong. For an end of year party without the ‘hangover’ employers should take active steps to make sure that employees can celebrate safely and without risk of being subjected to inappropriate conduct.

If any further information in relation to any aspect of this article or for specialised employment law advice, contact Workdynamic at https://workdynamic.com.au/contact

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

With the festive season around the corner many businesses will be considering a shutdown period over the holidays. This then raises the critical question of whether an employer can direct their employees to take paid annual leave over the shutdown and what happens if employees do not have sufficient leave to cover the entire period.

Whether an employer can direct employees to take annual leave during a temporary shutdown period will depend on if the employee is covered by a modern award or if the employee is award-free.

Award-Covered Employees

All modern awards include a provision that regulates an employer’s ability to direct employees to take annual leave during a temporary shutdown (for example, over Christmas and New Year).

The provision allows an employer to direct an employee to use their annual leave during the temporary shutdown period. However, an employer is required to give the affected employees written notice of a temporary shutdown period – commonly this is 28 days (unless a shorter period is agreed).

Award-Free Employees

Section 94(5) of the Fair Work Act 2009 (Cth) (FW Act) provides that an employer may require an award-free employee to take a period of paid leave, but only if the requirement is reasonable.

The section provides instances that may be considered reasonable will include (but are not limited to):

1. The employee has accrued an excessive amount of paid annual leave; or
2. The employer’s business is being shut down for a period (e.g. over Christmas and New Years).

Insufficient Annual Leave

Importantly, there is no right to direct an award-covered or award-free employee to take leave without pay unless this is stipulated in the employee’s contract of employment.

Accordingly, if an employee does not have sufficient annual leave to cover the shutdown period, the employer and employee must agree in writing for the employee to take leave without pay for that period. In the event the employee does not agree to take leave without pay, an employer may need to consider alternative options such as taking leave in advance or consider whether the employee can return to work during the shutdown period.

Key Takeaways

When planning for an end of year shutdown, businesses should:

• Check whether any applicable modern award contains term about directing employees to take annual leave over a temporary shutdown (including the required notice period).
• Provide notice to employees in writing – this should include the proposed dates of the shutdown.
• Start a dialogue with any employee who does not have sufficient accrued leave to cover the shutdown period. Alternate options may include taking leave without pay, taking leave in advance of accrual or performing work over the shutdown period.

For further assistance or specialised employment law advice, contact Workdynamic at https://workdynamic.com.au/contact/.

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

The recent Fair Work Commission (FWC) decision of Owens v I-Med Radiology has provided cautionary guidance to unvaccinated applicants making unfair dismissal applications.

The decision comes after a wave of unfair dismissal decisions involving mandatory vaccination directives have revealed similar unsuccessful themes for applicants in 2022 so far.
In this matter, Deputy President Asbury has proactively set out a 10-point rebuttal of COVID-19 related arguments, to help the applicant consider whether to proceed with her case.

Background

After more than 13 years’ service, Mrs Owens was dismissed from her employment by I-Med Radiology in December 2021. The decision was made by I-Med Radiology that Mrs Owens was unable to fulfil the inherent requirements of her role as a radiographer, due to her failure to comply with the company’s COVID-19 vaccination policy and Queensland’s mandatory vaccination public health orders at the time.

The case before the FWC concerned whether Mrs Owens had lodged her application within the required 21-day timeframe, as the effective date of her dismissal was unclear.
Mrs Owens had attended a meeting with the company’s Human Resources Business Partner and her support person on 17 December 2021. She was then provided with a letter on 21 December 2021 terminating her employment.

Leading up to her dismissal, Mrs Owens made assertions and demands to the company regarding the validity of the mandatory vaccination direction under the “written law”.

The Commission’s decision

Deputy President Asbury found that Mrs Owens had lodged her application within time, as the company did not tell her “in plain and ambiguous words” that it had definitively dismissed her in the 17 December 2021 meeting.

Therefore, she had reached the stage where she was able to have the merits of her case determined. Deputy President Asbury expressed a provisional view that Mrs Owen’s case will unlikely succeed based on the arguments contained in her application. In relation to workplaces subject to Government directives, the Deputy President noted that arguments relating to the following 10 points have been “emphatically rejected in numerous cases”:

1. “The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.
2. At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID-19 Pandemic including requirements that workers in particular settings are vaccinated.
3. The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s109 of the Constitution has been rejected by Australian Courts.
4. At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.
5. A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.
6. Incentives to encourage employees to be vaccinated are not coercion.
7. The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.
8. While the choice may be difficult, it is nevertheless a choice.
9. COVID-19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.
10. Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.”

The Deputy President made it clear that Mrs Owens’ application is not strong and substantial hurdles to success appear to exist.

Key take-aways

As the pandemic progresses, we have highlighted some of the key takeaways for employers to consider in vaccine-related dismissals:

• The 10-point rebuttal provided by the Deputy President only relates to workplaces subject to mandatory vaccination requirements under government directives.
• Although most recent decisions show support of workplaces subject to government directives, it is important to remember that unfair dismissals are multi-factorial.
• The FWC may consider whether the employee could have accessed leave entitlements while the directive was in force or whether alternative duties were available to the employee which did not require the employee to be vaccinated.
• It is often not until a matter is fully heard and evidence is taken and tested that the actual strength or weakness of a case emerges.
• A dismissal can still be unfair even if there is a valid reason, for example if the employer has manifestly failed to provide procedural fairness.
• Further decisions will be handed down by the FWC and the Courts, which are likely to follow past decisions. In Mrs Owens’ case, the Deputy President provided her with a link to the Commission’s website in relation to COVID-19 related cases.

In relation to effecting termination of employment, the case serves as a salient reminder to provide plain and ambiguous notice to employees, which is generally best delivered in writing.

For further information, please contact Mirna Oghanna, Associate, or Jane Wright, Director