Aleksandra Kojdanovska v NPC Media Pty Ltd [2023] FWC 1619

[2023] FWC 1619 The attached document replaces the document previously issued with the above code on 4 July 2023 to correct a minor typographical error at paragraph 21. Associate to Commissioner McKinnon Dated 4 July 2023 -- 1 of 18 -- -- 2 of 18 -- 1 Fair Work Act 2009 s.394—Unfair dismissal Aleksandra Kojdanovska v NPC Media Pty Ltd (U2023/39) COMMISSIONER MCKINNON SYDNEY, 4 JULY 2023 Application for an unfair dismissal remedy – whether dismissal was harsh, unjust or unreasonable [1] Ms Aleksandra Kojdanovska was employed as a part-time Presentation Coordinator for Nine Network Australia in its National Playout Centre (NPC) on or about October 2007. On 1 July 2018, NPC Media Pty Ltd (NPC Media) was created as a joint venture between the Nine Network and Seven West Media, servicing multiple television networks and markets. As a result of this change, Ms Kojdanovska’s employment transferred to NPC Media. [2] Despite a few quibbles and the pressure of the job, she loved it and worked hard. All was going well until the onset of the COVID-19 pandemic, and with it, the question of vaccination. On 22 December 2022, Ms Kojdanovska was dismissed due to non-compliance with NPC Media’s COVID-19 Vaccination Policy. On 3 January 2023, she applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act). Ms Kojdanovska was employed for more than the minimum employment period of 6 months and her annual remuneration of approximately $52,375 was below the high income threshold. Ms Kojdanovska is protected from unfair dismissal. [3] Under section 385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; the dismissal was harsh, unjust or unreasonable; and if relevant, was not consistent with the Small Business Fair Dismissal Code nor a case of genuine redundancy. [4] There is no dispute, and I am satisfied, that Ms Kojdanovska was dismissed. At the time of dismissal, NPC Media employed more than 15 employees and was not a small business employer. Accordingly, the dismissal could not have been consistent with the Small Business Fair Dismissal Code. The dismissal was also not a case of genuine redundancy. [5] The only question is whether the dismissal of Ms Kojdanovska was harsh, unjust, or unreasonable. I have answered the question in the negative. As a result, Ms Kojdanovska has not been unfairly dismissed. These are my reasons. [2023] FWC 1619 DECISION -- 3 of 18 -- [2023] FWC 1619 2 Relevant background [6] The COVID-19 pandemic began to intrude into the lives of Australians in March 2020. Various measures were introduced across the country with the stated aim of protecting the population against COVID-19. From on or about May 2021, this began to include access to COVID-19-specific vaccines. [7] NPC Media provides 187 free-to-air television channels to broadcast markets and streaming channels to Australian internet viewers. This requires the preparation of program and commercial content, management, control and monitoring of channel playout. Presentation Coordinators work on a 7-day continuous shift roster. They perform a real-time function, monitoring live vision feeds from multiple sources. They use a number of channels and multiple monitors to get live commercial content to air and counting live studios or outside broadcasts out of commercial breaks. This involves working on embedded specialist studio equipment such as player operating systems. Employees mostly sit at their desks. The role cannot be performed remotely, although some aspects of the role can be done from home, such as VIZ graphic imaging and scheduling. [8] On 27 June 2021, NPC Media’s People & Culture Manager, Ms Luciana Santos, sent a broadcast email to all employees reminding them of the requirement to wear a face mask while in the office, and of the need to sanitize workstations, and not to eat at their desks. The email was received by Ms Kojdanovska. [9] On 5 July 2021, Ms Santos sent another email to all employees including Ms Kojdanovska, to advise that as of Monday 12 July 2021, employees would be required to adopt the practice of a “COVID Safe Check-in” on arrival and departure from work. Temperature checks were put in place for arrivals into the building. [10] On 15 July 2021, Mr Michael Greenwood emailed employees to advise them of a complaint made to SafeWork NSW about employees not wearing face masks and about the lack of workplace ventilation. Employees were reminded to follow the public health advice including by wearing face masks in the office. [11] On 12 August 2021, Ms Santos wrote twice to employees: 1. updating them on restrictions for residents of a “Local Government Area of Concern” (LGA of Concern) and extended lockdowns in the Hunter and Upper Hunter, and 2. encouraging employees to become vaccinated against COVID-19 through paid time off and expense reimbursement, and by offering fully vaccinated employees a $100 eftpos gift card in recognition of their contribution to the safety of themselves and vulnerable groups in the extended community. Ms Kojdanovska felt this offer was discriminatory because it was rewarding those who received an “experimental vaccine” and because it made everyone else aware that others would miss out. [12] Separately on 12 August 2021, Ms Santos wrote to Ms Kojdanovska. She advised that because Ms Kojdanovska lived in an LGA of Concern, she could only leave the area to attend work if she was an authorised worker. Because she had this status, Ms Santos provided a travel document for Ms Kojdanovska to use when travelling for work. -- 4 of 18 -- [2023] FWC 1619 3 [13] On 20 August 2021, Ms Santos wrote to all employees about lockdown extensions and additional measures in the Greater Sydney Area until the end of September 2021. She advised that from Monday 23 August 2021, those who lived in an LGA of Concern who wished to leave the area to attend work would need to undertake rapid antigen testing at their worksite or have had a first dose of a COVID-19 vaccine by 30 August 2021. [14] On 30 August 2021, Ms Kojdanovska was notified of an extension to the deadline for becoming vaccinated to work outside her LGA of Concern from 30 August 2021 to 6 September 2021. Ms Kojdanovska was also advised that rapid antigen testing would no longer be an alternative to vaccination for this purpose. [15] On 31 August 2021, Ms Kojdanovska responded to Ms Santos. She advised that before she made a decision on vaccination, a response was sought from NPC Media about the safety of, and science behind, COVID-19 vaccines (the safety and science grounds). In summary, Kojdanovska asked: 1. How it could be a condition of her employment to receive an experimental vaccine, as stated on the public record by Health Minister Greg Hunt, 2. For “robust independent long term, placebo controlled studies” showing that this experimental and invasive treatment “which is designed to alter our DNA and RNA” is safe, given the case survival rate was exceptionally high at over 99.5% among the healthy population and “thousands of imminent doctors around the world” have described cheap, safe and effective prevention and treatment of COVID-19 in the form of Vitamins D and C, Zinc, Hydroxychloroquine and Ivermectin, 3. Why the Australian Government carry no responsibility for the safety of this experimental procedure, when animal experiments on these treatments have revealed pathogenic priming which killed many of the animals on re-exposure to infectious agents after receiving the COVID-19 vaccine, 4. What steps have been made by the manufacturers to ensure this would not happen to her or her family, 5. Why NPC Media was not regarding employee safety very highly while enforcing experimental COVID-19 treatment and coercing her into a medical procedure that carried significant risks in light of the Nuremberg Code and “Australia’s own Charter of Health Care Rights” and, 6. If her employment was now conditional on submitting to the vaccine, to what extent the company was prepared to reimburse her family and herself for ongoing medical treatment and financial loss in the event of a serious adverse reaction or death. [16] On 1 September 2021, Ms Santos replied to Ms Kojdanovska. She provided a link to the Public Health (Covid-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) and confirmed the conditions set by that order for Ms Kojdanovska to leave her LGA of Concern for work. She explained that if Ms Kojdanovska did not meet these conditions when she came to work, she would likely not only be in breach of the Public Health Order, but also pose a risk to operations and other staff. She stated that NPC Media’s position was adopted for consistency with the Public Health Order and consistent with its’ keeping the workplace safe, protecting all employees and their families. She advised that NPC Media was unable to make any exception that went against the Public Health Order. -- 5 of 18 -- [2023] FWC 1619 4 [17] On 5 September 2021, Ms Kojdanovska replied to Ms Santos. In a letter her husband helped her write, she advised that she was of good health, young, fit and ready to come to work the following Tuesday. She asked for a suggested reasonable solution if NPC Media’s stance remained as it was on the topic of vaccination, having regard to information she now provided to the effect that the Public Health Order might not be constitutionally valid (the legality grounds). The legality grounds were stated as these: 1. Under the current division of powers in Australia, the Federal Government and the Government of a particular State share responsibility for different aspects of health in that State. The Constitution did not purport to limit the power of States to make laws and exercise powers in respect of public health. Neither section 51 of the Constitution, which empowers Federal Parliament to make laws for the peace, order and good government of the Commonwealth, nor any other section of the Constitution, precludes the States from making laws with respect to the provision of health or medical-related benefits or services, and the Commonwealth does not retain power to the exclusion of the States. 2. The Commonwealth Parliament has exclusive power to make laws with respect to a limited number of things. All other issues are “concurrent powers” shared between the Commonwealth and the States. 3. The States have power to make laws about public health. The NSW Government is not “constitutionally-estopped” from making orders under the “Public Health Act”, and s.109 of the Constitution is not invoked and has no work to do in relation to the issue. However, if the Commonwealth did purport to make laws for public health in respect of the COVID-19 pandemic and those laws were found to be contrary to the Public Health Act or other NSW legislation, section 109 would likely result in the Commonwealth law prevailing. [18] Despite what Ms Kojdanovska stated in her email of 5 September 2021, the legality grounds do not arrive at any conclusion that the relevant NSW Public Health Orders were constitutionally invalid. [19] On 6 September 2021, Ms Santos advised Ms Kojdanovska that NPC Media could not comment on the validity of the NSW Public Health Orders and that it was committed to complying with them. Noting that her role could not be performed remotely, Ms Kojdanovska was given until 4.00pm on 8 September 2021 to: provide evidence of a first dose of a COVID- 19 vaccine, or an appointment to have one, or a medical certificate indicating a medical contraindication, or a compelling reason not to comply with the public health orders such has not having been in an LGA of Concern in the past 14 days. Absent such evidence, Ms Kojdanovska was told she would be stood down without pay from 9 September 2021. She was also given the option to take annual leave during the stand down period. [20] Ms Kojdanovska did not provide the evidence requested and on 9 September 2021, she was stood down without pay for the duration of the NSW Government’s applicable public health orders, although she continued to have access to her work email. Ms Kojdanovska applied for annual leave and then long service leave as an alternative to being stood down without pay and this was granted. -- 6 of 18 -- [2023] FWC 1619 5 [21] On 21 September 2021, Ms Kojdanovska received a copy of a broadcast email from NPC Media to all employees, offering rewards for fully vaccinated people including half price gym memberships at Virgin Active. The email made her feel anxious and excluded for choosing not to become vaccinated. [22] On 3 November 2021, NPC Media undertook a survey of employees about whether they supported a mandatory vaccination policy. A majority (77%) of employees supported a policy of mandatory vaccination. [23] On 12 November 2021, Ms Kojdanovska was sent an email attaching NPC Media’s “Roadmap for easing of COVID-19 restrictions” which, among other things, announced the implementation of a “COVID-19 Vaccination Policy” with effect from 1 December 2021. [24] On 1 December 2021, the COVID-19 Vaccination Policy came into effect. Under the policy, vaccination was made mandatory for all visitors to the workplace premises, including employees, volunteers, affiliates, contractors and visitors. This extended to remote based workers, on the basis that they must be able to access NPC Media’s premises when directed to attend training, team meetings, collaboration initiatives and other duties to support the effective operations of NPC Media. [25] Subject to evidence of medical contraindication or other discretionary approval of an exemption, the COVID-19 Vaccination Policy provides as follows: “Workers and visitors of NPC Media are subject to a requirement that they be fully vaccinated against COVID-19 (the Vaccination Condition). Satisfactory evidence of your compliance with the Vaccination Condition is required to be supplied to the People & Culture department at NPC Media, prior to you entering into the workplace premises. Satisfactory evidence is a copy of your immunisation history statement, COVID-19 digital vaccination certificate, or other evidence as directed by NPC Media. Your ongoing employment/engagement with NPC Media is subject to you: 1. continuing to be fully vaccinated against COVID-19 to the satisfaction of NPC Media, 2. taking all necessary steps to ensure that you continue to satisfy the Vaccination Condition, including that you keep up to date with and comply with all Federal and State Government recommendations regarding the COVID-19 vaccinations(s) such as booster injections, 3. immediately providing a copy of your immunisation history statement or COVID- 19 digital vaccination certificate to NPC Media’s People & Culture department, or other evidence as required by NPC Media, and 4. immediately notifying the People & Culture department at NPC Media in writing of all facts and circumstances relevant to whether you are meeting or may continue to meet the Vaccination Condition.” [26] The policy states that it “may be amended or withdrawn at NPC Media’s discretion. We will continue to keep the situation in relation to vaccinations under review in our ongoing -- 7 of 18 -- [2023] FWC 1619 6 COVID-19 risk assessments and we may need to review this policy, if for example, our risk assessments or Government guidance indicate that we need to amend this policy.” [27] On 22 December 2021, Ms Kojdanovska received a broadcast email from Ms Santos to all employees, advising that 100% of team members were now fully vaccinated and that as a result, positive cases on site would mean those exposed were “low risk contacts” or “casual contacts” in line with NSW Health’s COVID-19 Contact Classification. She provided information about what employees were required to do if they fell into a contact category and reminded them that face masks (available at the Security office) were encouraged at work for increased protection. She also reminded employees that COVID-19 booster vaccinations were now available in NSW and that “maintaining your fully vaccinated status, including booster shots, is part of our COVID-19 Vaccination Policy”. [28] On 6 January 2022, Ms Kojdanovska received a broadcast email from Ms Santos advising of COVID-19 cases at NPC Media. The email advised that deep cleaning had been organised, that workstation wipedowns and social distancing should continue, and that face shields had been purchased for use and were available at the Security office. Ms Santos provided information about the latest changes to “Test, Trace, Isolate and Quarantine” made by National Cabinet, including that PCR tests would no longer be required to confirm a positive rapid antigen test. [29] COVID-19 Case alerts became increasingly common. On 11 February 2022, 18 March 2022, 31 March 2022, 11 April 2022 and 20 April 2022, Ms Santos emailed employees of new COVID-19 cases at NPC Media, and reminded employees of their responsibility to continue to satisfy the Vaccination Condition. Reading these emails was stressful for Ms Kojdanovska, because despite COVID-19 cases being on the rise at work, vaccinated team members were allowed to work while she was not. She was considered a danger to her team members even though she considered herself to be healthy, young, fit and had not yet had COVID-19. [30] On 12 December 2022, Ms Santos and then the Executive Team reviewed the COVID-19 Vaccination Policy. As part of this review, Ms Santos undertook a risk assessment in relation to COVID-19, which considered the nature of the workplace, the extent of community transmission of COVID-19 in Greater Sydney, the effectiveness of vaccines in reducing the risk of transmission of serious illness, work health and safety obligations, individual employee circumstances, reasons for some employees not being vaccinated, vaccine availability, and the availability of other less invasive measures to eliminate or reduce risk. She formed the view that if an outbreak of COVID-19 occurred in the Presentation team, there would not likely be enough Presentation Coordinators to perform that function. She recommended that the COVID-19 Vaccination Policy continue, and the Executive Team agreed. [31] Ms Kojdanovska was identified as a candidate for potential termination of employment due to her continuing non-compliance with the policy. The possibility of alternative roles were considered by Ms Santos, but she was not able to identify any available roles that could be worked substantially from home. [32] On 14 December 2022, Ms Santos rang Ms Kojdanovska. She asked if her vaccination status had changed, and Ms Kojdanovska said no. Ms Santos indicated that Ms Kojdanovska -- 8 of 18 -- [2023] FWC 1619 7 may be dismissed on 21 December 2022. Ms Kojdanovska asked why NPC Media was still pushing for vaccines when the NSW Government was no longer in a declared State of Emergency and had dropped all vaccine mandates. Ms Santos responded to the effect that NPC Media had reviewed its policy and decided to keep the policy for the safety of the team. Ms Kojdanovska asked for an exemption from compliance with the policy on religious grounds, and for an email of the details they had spoken about. [33] Ms Santos subsequently wrote to Ms Kojdanovska to advise that due to her non-compliance with the policy and her inability to perform all of her duties remotely, NPC Media was considering termination of her employment without notice on the basis of her inability to fulfil the inherent requirements of the job. Ms Kojdanovska was invited to respond to the email by 20 December 2022. She was advised that absent compelling cause, her employment would be terminated with effect from 21 December 2022. [34] On 15 December 2022, Ms Kojdanovska made a Statutory Declaration in support of her request for a religious exemption from the COVID-19 Vaccination Policy. On 16 December 2022, Ms Kojdanovska created a document for her priest to sign supporting her religious beliefs. She then wrote to Ms Santos attaching a copy of the Statutory Declaration and the letter from her priest (the religious grounds) and sent her a hard copy of the documents by express post. The religious grounds are considered in more detail below. [35] The effect of Ms Kojdanovska’s response of 16 December 2022 was to confirm that she would not comply with the COVID-19 Vaccination Policy. NPC Media’s Executive Team (Mr Paul Mullen, Group CEO, Mr Michael Greenwood, General Manager, Ms Marine Bisson, General Manager Finance, and Mr Christopher Howe, General Manager Commercial & Technology) met to discuss her response and request for an exemption on religious grounds. [36] On 21 December 2022, the Executive Team met again and decided to dismiss Ms Kojdanovska. Ms Santos rang Ms Kojdanovska to arrange a telephone meeting to discuss the matter and advised that she could have a support person on the call. [37] On 22 December 2022, Ms Santos called Ms Kojdanovska to discuss her response to the letter of 14 December 2022. Ms Kojdanovska’s husband joined the call as a support person. Ms Santos advised that they had reviewed the statutory declaration and letter from the priest and that these had not been accepted as reasons not to comply with the policy. [38] Ms Kojdanovska asked if NPC Media was above the International Covenant on Civil and Political Rights. Ms Santos replied to the effect that she did not deal with the law but that she was in charge of the COVID-19 Vaccination Policy. Ms Kojdanovska questioned the legality of the policy. Ms Santos confirmed that Ms Kojdanovska’s employment would terminate that day and that the decision would be confirmed in writing. [39] Ms Kojdanovska said she would be taking the matter to “Fairwork”, that she was very stressed, that no one was listening to the unvaccinated, that the policy stated no-one should be discriminated against, that she had been discriminated against, and if that was not discriminating against a person for their medical choice she did not know what was. She stated that after 15 years of service, to be thrown out the door three days before Christmas made her very emotional. -- 9 of 18 -- [2023] FWC 1619 8 [40] The decision to dismiss was confirmed in a letter to Ms Kojdanovska on 22 December 2022 and had immediate effect. Was the dismissal harsh, unjust or unreasonable? [41] Whether a dismissal was harsh, unjust or unreasonable depends on an assessment of all the relevant facts and circumstances, including those set out in section 387 of the Act. Was there a valid reason for the dismissal related to capacity or conduct? [42] The reason given for dismissal was Ms Kojdanovska’s non-compliance with the COVID-19 Vaccination Policy. It is not in dispute that Ms Kojdanovska did not comply with the policy. [43] The policy was put in place after a survey of employees indicated support for mandatory vaccination in the workplace, as one of a series of measures intended to mitigate the risks of COVID-19 in the workplace. The policy was notified to employees in advance and came into effect on 1 December 2021. Employees, including Ms Kojdanovska, were repeatedly reminded of their obligations to comply with the policy. They were, at all times, on notice of the consequences of failing to do so. Ms Kojdanovska was aware that she was not complying with the policy, and that termination of her employment was a potential consequence of this position, for more than 12 months. [44] NPC Media had then, and still has, a positive duty to ensure the health and safety of the workplace so far as is reasonably practicable.1 Failure to comply with this duty can have serious consequences. The duty extends to measures to eliminate or mitigate the risks of COVID-19 in the workplace. [45] It is now notorious that vaccination against COVID-19 does not prevent transmission or infection with the virus. But equally notorious is the consensus that vaccination plays a role in reducing rates of transmission, and reducing the severity, of COVID-19 for those who become infected. In that way, vaccination contributes to the health and safety of the population and is a generally accepted measure through which workplace health and safety risks can be managed. Accordingly, NPC Media had a legitimate basis for implementing the policy as a measure to protect employees and others in the workplace in connection with COVID-19. [46] Ms Kojdanovska’s terms and conditions of employment required her to comply with all directions of the Company from time to time. The COVID-19 Vaccination Policy made vaccination against COVID-19 a condition of ongoing employment with NPC Media and directed employees to provide evidence of their vaccination status to Ms Santos, and to notify her in writing of all facts and circumstances relevant to whether they were meeting, or may continue to meet, the Vaccination Condition. [47] The evidence does not establish that these directions were unlawful. The legality grounds relied upon by Ms Kojdanovska do not bear on the question, and nor do the later contentions about the validity of State and federal elections and government mandates (summarised at paragraph [70] below). I find that the directions were lawful. -- 10 of 18 -- [2023] FWC 1619 9 [48] No submission was made to the effect that the directions were otherwise unreasonable, although it may be inferred that Ms Kojdanovska thinks that they were. I do not agree. The directions formed part of a suite of measures adopted by NPC Media to manage its work, health and safety obligations in the context of a global pandemic, strong community support for vaccination both locally (within NPC Media) and as a matter of national interest, as well as the nature of the working environment, which made other measures to manage COVID-19, such as social distancing and improved ventilation, less effective. While COVID-19 may not hold as much sway in the public discourse as it once did, it has not gone away. At the time of dismissal, it remained a risk to the health and safety of workers that NPC Media was required to eliminate or reduce. [49] It is not in dispute that Ms Kojdanovska could only perform the role of Presentation Coordinator from the workplace. Her vaccination status meant that she was unable to attend the workplace while the policy remained in place. For this reason, Ms Kojdanovska was unable to perform the inherent requirements of her role. [50] I am satisfied that there was a valid reason to dismiss Ms Kojdanovska. Was the valid reason notified to Ms Kojdanovska in advance? [51] On 14 December 2022, NPC Media wrote to Ms Kojdanovska to advise that it may terminate her employment due to non-compliance with the COVID-19 Vaccination Policy and in the absence of a compelling reason why it should not do so from Ms Kojdanovska by 20 December 2022. [52] I am satisfied that a valid reason for dismissal was notified to Ms Kojdanovska prior to her dismissal on 22 December 2022. Was there an opportunity to respond to any capacity or conduct related reason? [53] The letter from Ms Santos on 14 December 2022 sought a response to the proposal to terminate Ms Kojdanovska’s employment by 20 December 2022. Ms Kojdanovska provided her response on 16 December 2022, and the parties met to discuss the matter on 22 December 2022. [54] I am satisfied that Ms Kojdanovska had an opportunity to respond to NPC’s concern about her conduct in not complying with the COVID-19 Vaccination Policy and the consequence of this conduct, being that she could not perform the inherent requirements of her role, before a decision was made to terminate the employment relationship. Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal? [55] There was no unreasonable refusal to allow Ms Kojdanovska to have a support person assist in discussions about the dismissal. Ms Kojdanovska asked to have a support person with her in discussions on 22 December 2022 and this was agreed. -- 11 of 18 -- [2023] FWC 1619 10 Was Ms Kojdanovska warned about relevant unsatisfactory performance? [56] This is not a relevant consideration. Ms Kojdanovska’s dismissal was about her conduct, rather than any unsatisfactory performance. Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal [57] NPC Media is a business of reasonable size. It has access to human resources and other expertise in relation to disciplinary matters that might lead to the termination of an employee’s employment. These characteristics likely contributed to the adoption of processes and procedures that supported a procedurally fair dismissal, including a single point of contact for dealing with the matter, regular communication and the provision of information, and an opportunity to understand and respond to the reasons for dismissal before a final decision was made. Other relevant matters [58] Ms Kojdanovska had a long period of service, largely without incident. She is relatively young and skilled. I see no future barrier to alternative employment, except potentially in connection with her vaccination status. Ms Kojdanovska was absent from work for more than 12 months before her employment was terminated, including periods of paid and unpaid leave. For the entire period of her absence, Ms Kojdanovska was on notice that her non-compliance with the COVID-19 Vaccination Policy might have the consequence of dismissal. Upon termination, Ms Kojdanovska was paid her outstanding entitlements, including a payment in lieu of notice. [59] Ms Kojdanovska submits that the dismissal was unfair because NPC Media: 1. Rejected her evidence that having a COVID-19 vaccine went against her religious beliefs, 2. Failed to answer her numerous emails explaining safety concerns if she were to be vaccinated, 3. Did not hear her concerns about being coerced into receiving a medical procedure that she was extremely uncomfortable with, and did not give her a choice in the matter, and 4. Did not give her the opportunity to move into another position where she could perform her duties from home. Evidence provided by Ms Kojdanovska that having a COVID-19 vaccine went against her religious beliefs [60] The evidence provided by Ms Kojdanovska in support of the religious grounds for non-compliance with the COVID-19 Vaccination Policy is contained in her statutory declaration, which declares: 1. That she held a “deeply and sincerely held” religious belief on the basis that it was a practice of the Macedonian Orthodox religion to have full autonomy over her body and make medical decisions on her own, and not be forced into an injection of a vaccine. -- 12 of 18 -- [2023] FWC 1619 11 2. That coercing her to undergo an immunisation against her will was unethical as it removed her moral agency – which together with the doctrine of free-will was a fundamental concept in the Christian/Orthodox faith. 3. Under Title VII of the Civil Rights Act of 1964 she had a right to be free from discrimination on the basis of religion, that “this act is targeted at employees” and the mandate was discriminatory against those who had a deeply held religious belief or medical exemption. 4. The Macedonian Orthodox bible “speaks of a devilish figure who will come and force a branding or injection as a means to control humans and their desires and actions”. As a woman of Orthodox faith, it was her sincerely held religious belief and the belief of her fellow Orthodox believers and priests that “this is upon us in today’s society” in the form of the COVID-19 vaccine/vaccine mandates. 5. She understood the seriousness of COVID-19, but as time has moved on we understand more about the virus and vaccination has not stopped the spread of transmission and infection. 6. She is a practicing parishioner in the Macedonian Orthodox religion. Her belief was religious and not based on any political, sociological, scientific, or medical opposition to immunisations. As an Orthodox believer, she practices her faith daily through prayer, reading scripture, participating in Orthodox rituals through her church, following religious rules and applying them to her daily life. She worships the God of her faith and is true to her religious beliefs, “as evident by” a letter from her religious institution and her “willingness to defend” her faith to those who wish to question it. [61] The letter from Ms Kojdanovska’s priest is signed by the Very Rev. Fr Naum Despotoski, of the Orthodox place of worship at 18A Dalmeny Ave, Rosebery NSW 2018. The letter appears to be a template for use by employees to obtain certification that their religious beliefs prohibit their receiving “all of the COVID-19 vaccinations available for use in Australia”. It includes space for handwritten notes and the signature of a religious leader of any denomination. The handwritten notes on the letter made by Ms Kojdanovska say this: “As a Macedonian Orthodox believer and as an adult with autonomy over my medical decision making, have chosen not to obtain any covid vaccines. It goes against our Macedonian Orthodox beliefs. I worship the God of my faith, the congregation and I are [sic] true to our religious beliefs.” [62] It would not be correct to say that Ms Kojdanovska’s reasons for not complying with the COVID-19 Vaccination Policy were religious only, and not based on any political, sociological, scientific, or medical opposition to immunisations. Ms Kojdanovska objected to vaccination against COVID-19 on each of the safety and science grounds, the legality grounds and the religious grounds. [63] The evidence in relation to Ms Kojdanovska’s religious beliefs is not strong. Firstly, there is no objective evidence that the Macedonian Orthodox religion has taken a stance against COVID-19 vaccination, or that such vaccination runs contrary to its beliefs. While I do not exclude that possibility, there is simply no evidence of such a stance or any teachings of the Church on matters such as bodily autonomy, moral agency and the doctrine of free-will. The letter signed by Ms Kojdanovska’s priest is of limited probative value. It is not accompanied by any statement of doctrine, principle or position to which leaders or followers of the -- 13 of 18 -- [2023] FWC 1619 12 Macedonian Orthodox religion might subscribe, or any cross-reference to information that might assist in this understanding. [64] When asked about her religious beliefs at the hearing, Ms Kojdanovska did not give the impression that she regularly reads scripture. She was unable to answer questions about what the Bible says, or to point to those parts of the Bible relied upon as speaking of a “devilish figure” and a “branding or injection”, although she agreed that the Bible did not say “injection”, and was aware that it had the New and Old Testaments and some Books. [65] Further, the religious grounds were not raised by Ms Kojdanovska until December 2022, more than one year after the COVID-19 Vaccination Policy became effective, and only when the prospect of termination of employment became real. Documents provided in support of the religious grounds are of a generic kind, giving the appearance of templates created to assist employees to gain an exemption from vaccination requirements. [66] As to the Civil Rights Act of 1964, it has no application in Australia, or to the facts of this case. It is, or was, a law of the United States of America. Discrimination law in Australia takes its own form and while discrimination on religious grounds is also prohibited in Australia, I am not persuaded on the strength of the evidence that the requirement for Ms Kojdanovska to comply with the COVID-19 Vaccination Policy had the effect of treating her differently to others because of her religious beliefs. [67] Overall, I am not satisfied that vaccination against COVID-19 was contrary to Ms Kojdanovska’s religious beliefs. NPC Media had a reasonable basis for deciding not to grant an exemption to the COVID-19 Vaccination Policy on the religious grounds. NPC Media’s failure to answer Ms Kojdanovska’s numerous emails explaining safety concerns if she were to be vaccinated [68] Ms Kojdanovska only sent one email to NPC Media about her vaccination-related safety concerns, on 31 August 2021. Ms Santos responded to this email promptly. While she may not have gone into the level of detail that Ms Kojdanovska sought, she explained why NPC Media was taking the position that it did and confirmed the two reasons for this position at the time: consistency with the NSW Public Health Orders; and to keep its workplace safe for all employees and their families. Links were provided for more information about the NSW Public Health Orders. [69] After the dismissal, in an Affidavit sworn by Ms Kojdanovska on 14 March 2023, she called into question the validity, safety and efficacy of COVID-19 vaccines. She claimed that NPC Media has no legal standing and sought to rely on a (non-existent) case in the Victorian Civil & Administrative Tribunal (VCAT) before “Vice President Saunders” in November 2022 (“Case Z132/2022”). It seems likely that this was instead a reference to an application before Deputy President Saunders of this Commission – one which settled at conciliation and did not proceed to hearing or decision. [70] The Affidavit records that Ms Kojdanovska is a “living woman” and makes a series of strange contentions, including that: -- 14 of 18 -- [2023] FWC 1619 13 1. NPC Media “lacks Standing, with legal counsel, for it is a Federally Registered corporation under the “Australian Business Register Service (ABRS)” and is NOT a State-Owned Corporation” and that “legal counsel MUST present the continuation of evidence, that a Federally Registered Corporation can access a State Mandate, without consent, as per the International Covenant on Civil & Political Rights”. 2. It has been proved in Supreme Courts and the New South Wales (NSW) Tribunal that former NSW Premier Dominic Perrottet somehow invalidated the 2022 Federal Election on 21 May 2022 by issuing writs for the NSW Senate, and by invalidating and replacing the purported Governor, the State of NSW published on the Australian Electoral Commission website on the eve of the 2022 Federal Election. 3. The 2023 NSW Election on 25 March is invalid. 4. Criminal charges are pending against the Premier of Victoria, Daniel Andrews, for the unlawful and unconstitutional removal of the Queen without referendum. 5. There is no legitimate Parliament in NSW and there are no legitimate laws in NSW to terminate the employment or any NSW elector based on a mandate that has no legal or lawful authority. This is a matter of extreme and national urgency under section 80 of the Criminal Code Act 1995 (Cth) (treason and related offences) and under NSW “Imperial Law”, sections 12 and 348 of the Crimes Act 1900 (NSW) (murder and treason-related offences). 6. The Fair Work Commission is outside of jurisdiction and must be passed in its entirety to the President of the Court of Appeal, Supreme Court of Victoria. 7. Because Dominic Perrottet invalidated the 2022 Federal Election, neither of the two essential election writs for both State Houses were created in accordance with section 12 of the Constitution. This means there are no validly elected federal senators and no authority for the Federal Parliament to make any mandates or public health orders. 8. Judicial officers in NSW are “legal-fiction-persons”, such that the Cestui Que Vie Act, 1666 prevents any orders being made against the “live woman” Ms Kojdanovska without a “current commercial contract” and it would be an offence under section 134 of the Criminal Code Act 1995 (Cth) (obtaining financial gain by deception) to “continue with proposed orders”. 9. These “Acts” (statutes) do not apply to Ms Kojdanovska, who is “standing under the highest law, found in the King James Version, Holy Bible, 1611. Absent evidence of a “legal corporate contract” that replaces her holy contract with God, this case cannot proceed for want of lack of jurisdiction and must be dismissed under section 134 of the Criminal Code Act 1995 (Cth). 10. The Commission must protect Ms Kojdanovska under section 732 of the Fair Work Act 2009 (prohibition on multiple actions) which is said to include the Australian Human Rights Commission Act 1986 and the International Covenant on Civil & Political Rights 1980. 11. The Commission and Marsdens Lawyers (representatives of NPC Media) are subverting and perverting the course of justice by denying Ms Kojdanovska the right to include documents filed in a different case to the effect that there was no Victorian State Election and no NSW State Election, and by denying her an extension to argue that there was no 2022 Federal Election writs and no 2023 NSW State election without a Constitutional Governor to represent the Constitutional Monarch, in breach of section 80 of the Criminal Code Act 1995. 12. The Commission is duty bound to report this whole criminal case, and to transfer it to the President of the Commission and the Commonwealth Director of Public -- 15 of 18 -- [2023] FWC 1619 14 Prosecutions for further investigation into concealment of the NSW State Election Fraud. [71] By her Affidavit, Ms Kojdanovska “makes” a “counter-claim” for maximum compensation under the Act, on the basis of unfair and unlawful termination reliant on State Mandates when in fact NPC Media is a federally registered corporation operating under the federal jurisdiction and now has “legal obligation” for the maximum 26 weeks as damages. [72] The contents of this Affidavit take the application for an unfair dismissal remedy no further. Contentions about the validity of elections or government mandates are misguided because Ms Kojdanovska was not dismissed for non-compliance with any government decision or mandate. The reason for dismissal was non-compliance with the COVID-19 Vaccination Policy, and Ms Kojdanovska’s resultant inability to perform the inherent requirements of her role. These were matters entirely within the discretion of NPC Media. [73] A substantial volume of additional material going to validity of vaccine mandates and the science of COVID-19 vaccines was subsequently filed in the Commission on behalf of Ms Kojdanovska in the form of affidavits filed in another case. At the time of hearing, it appears that the case was ongoing. These affidavits were likely the subject of Harman undertakings. They could not, in any event, have had any bearing on whether the dismissal of Ms Kojdanovska was unfair, including because the information they contain was not available to either party before the dismissal took place. Further, the validity of laws is a matter for the Courts and not for the Commission. For those reasons, this material was not admitted as evidence in the proceeding. [74] I find that NPC Media did not fail to answer numerous emails from Ms Kojdanovska about her safety concerns if she were to be vaccinated. NPC Media’s unreasonable conduct in not hearing concerns about being coerced into receiving a medical procedure that she was extremely uncomfortable with, and not being given a choice in the matter [75] I have traversed aspects of this complaint above. NPC Media did not fail to hear Ms Kojdanovska’s concerns about being coerced into becoming vaccinated and it did not fail to give her a choice in the matter. Ms Santos considered the responses she received from Ms Kojdanovska about the requirement to comply with the COVID-19 Vaccination Policy. She responded to those responses in a timely way. [76] By adopting the COVID-19 Vaccination Policy, NPC Media was not coercing, or forcing, Ms Kojdanovska to have a vaccine. There is now an established line of authority, both in this Commission and the courts, to the effect that requiring an employee to be vaccinated against COVID-19 as a condition of employment will not usually amount to coercion. It leaves room for the individual to make a choice about whether to become vaccinated. That choice may have serious consequences, as it did in this case, because Ms Kojdanovska lost her job. But this choice was hers to make in the context of her contractual obligations to NPC Media. Ms Kojdanovska was not compelled to receive medical treatment against her will. On the contrary, she exercised her choice not to become vaccinated against COVID-19 and did not receive any such medical treatment. -- 16 of 18 -- [2023] FWC 1619 15 Not being given the opportunity to move into another position where she could perform her duties from home [77] The COVID-19 Vaccination Policy applied to all workers, including those working from home. It did so on the basis that even remote based workers must be able to access NPC Media’s premises when directed to attend training, team meetings, collaboration initiatives and other duties. [78] It is not in dispute that the role of Presentation Coordinator cannot be performed remotely, including from home. This was the role in which Ms Kojdanovska was employed. It was the role NPC Media required Ms Kojdanovska to perform. There was no obligation on NPC Media to redeploy Ms Kojdanovska to an alternative role if she was not willing to meet the conditions of her employment. Of course, it could have pursued this option if it wished and indeed the option was considered by Ms Santos, but not found to be feasible in the sense that there was no identified alternative role that could have been performed entirely or even substantially from home. Conclusion [79] There was a valid reason for the dismissal of Ms Kojdanovska, arising from her non-compliance with the COVID-19 Vaccination Policy and her resultant inability to perform the inherent requirements of her role. The process undertaken by NPC Media in connection with the dismissal was not unfair. There is also no basis upon which to conclude that the dismissal was harsh because of the personal characteristics or circumstances affecting Ms Kojdanovska, either before or after the dismissal, or at the time. Her contentions about the safety or validity of vaccines and vaccine mandates take the matter no further. [80] The loss of a job and a good employee after 15 years’ service is regrettable for both parties. However, NPC Media consulted with employees and implemented a policy supported by the majority. It gave notice of the policy, and of the consequences of failing to comply with the policy. It ensured that employees had adequate time to comply with the policy, which in the case of Ms Kojdanovska, was more than 12 months. [81] Ultimately, NPC Media was entitled to make the choice that it did about how to manage the risks of COVID-19, just as Ms Kojdanovska was entitled to choose not to become vaccinated. These choices had the unfortunate consequence of bringing the employment relationship to an end. In all of the circumstances, I am not satisfied that the dismissal of Ms Kojdanovska was harsh, unjust or unreasonable. Ms Kojdanovska has not been unfairly dismissed. [82] The application is dismissed. -- 17 of 18 -- [2023] FWC 1619 16 COMMISSIONER Appearances: D Balogh on behalf of the applicant. S McIntosh of Counsel for the respondent. Hearing details: 2023. Sydney: April 21. Printed by authority of the Commonwealth Government Printer <PR763888> 1 Work, Health and Safety Act 2011 (NSW), s.19. -- 18 of 18 --