Hitler video – funny or foul?

3 October, 2019

In response to the outbreak of COVID-19, governments in the various states and territories of Australia have enacted public health orders to minimise the risk of further transmission of the virus. Following the making of these public health orders, employers have responded with various policies and requirements for their workforce, such as organising working from home arrangements, requiring masks to be worn within the workplace and stipulating that only fully vaccinated employees can enter the workplace.

Whilst the vast majority of citizens have complied with the health orders and their employer’s requirements, questions have been raised concerning the validity of the public health orders enacted by governments and whether the directions made by employers are lawful and reasonable in the particular circumstances.

These questions have been answered recently within four separate judgments, dealing with the validity of the NSW government’s public health orders, whether employers have the ability to enforce mandatory COVID-19 vaccinations and whether employees can be required to wear a mask in the workplace. Each of these cases will be considered below.

Were the Public Health Orders Valid?

The New South Wales Supreme Court has published the highly anticipated judgment of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. This case saw the plaintiffs challenge the validity of public health orders made by the Minister for Health and Medical Research, Bradley Hazzard, under section 7(2) of the Public Health Act 2010 (NSW) (the “PHA“).

These challenges focused on the orders which prevented authorised workers from leaving an affected area of concern, and prevented some people from working in the construction, aged care and education industries, unless they had been vaccinated against COVID-19.

While multiple grounds were raised by the plaintiffs, the fundamental challenge concerned the impact of the orders on the rights and freedoms of individuals who choose to not be vaccinated, particularly concerning their ‘freedom’ or ‘right’ to their own bodily integrity which was infringed by orders forcing them to be vaccinated against their will. Further, it was argued that such an order was not authorised to be made under s 7(2) of the PHA, with this section not authorising orders or directions that interfered with these rights, or that the orders were otherwise unreasonable because of their effect on these rights.

The Court found that the orders do not force a vaccine to be given to somebody who does not wish to be vaccinated. The orders do not infringe upon the right of bodily integrity, and do not authorise an ‘assault’ on an individual who does not want to receive the vaccine. The following passage from the judgment is of importance (at [9]):

The proper analysis is that the… orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the… orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises.”

In finding that the orders were valid, the Court noted that orders made under the PHA which restricted an individual’s freedom of movement on arbitrary grounds, such as race or gender, “would be at a severe risk of being held to be invalid as unreasonable”. The Court held that treating people differently due to their vaccination status was not an arbitrary ground, and was considered to be consistent with the objects of the PHA – namely, protecting and controlling risks to public health, and preventing the spread of infectious diseases (see section 3 of the PHA).

Ultimately, the proceedings were dismissed, with the Court upholding the validity of the orders.

Can employees be required to have the COVID-19 vaccination?

Given the response by the Australian Government and the push for vaccinations against COVID-19, employers may determine that in order to effectively control the risk of infection, it will require its workforce to be vaccinated before attending the workplace. While some employees will consider this a reasonable response given the highly infectious and contagious nature of the virus, not all employees will agree with this position should it be adopted by their employer.

This was seen recently in Queensland, where the Queensland Industrial Relations Commission was required to consider a direction issued by the Queensland Police Commissioner that all police officers be vaccinated.

In Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, police officers argued that the direction was inconsistent with the State’s Police Service Administration Act 1990 (Qld) and therefore had no effect, or alternatively that it was outside of the Police Commissioner’s power as it intended to vary the terms and conditions of their employment. Further, the police officers argued that the Police Commissioner did not consult them on the vaccination mandate.

In determining the case, the Commission found that it had been established that proper consultation had occurred between staff and unions, with evidence showing that each employee received various documents by email that explained the Police Commissioner’s intentions regarding the mandate. Further, evidence showed that agreement was reached with 5 unions regarding the direction, with each applicant in this case being a member of a union at the time the direction was given.

In considering whether the Police Commissioner had the power to issue the vaccination direction, it was found that a ‘direction given to an employee does not, without more, become a term or condition of employment’. Provided that the direction is within the scope of employment and is not contrary to the employment contract or any applicable award or enterprise agreement, the direction must be followed where the direction is reasonable and does not involve illegality.

This case is important for employers considering implementing a mandatory vaccination policy for their workforce, as it demonstrates the importance of consulting with employees prior to implementing the policy/mandate.

While not dealing with the COVID-19 vaccine, the Fair Work Commission has held that the dismissal of a receptionist, who worked in an aged care residential facility and refused to comply with a mandatory influenza vaccination policy, was fair as the vaccination against the flu was an inherent requirement of her role. In Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (“Kimber“), the employer relied on NSW public health orders that were in force at the time which prohibited persons from entering an aged care facility without an up-to-date influenza vaccine (this order was held to be a valid order as discussed above). This meant that the employee could not lawfully enter her place of work unless she was vaccinated and therefore could not perform her role. The decision of the Fair Work Commission was upheld on appeal to the Full Bench, with the Full Bench finding that Ms Kimber did not have a valid medical contraindication such as to provide her with a valid exemption from the order. In commenting on whether the appeal was in the public interest, the Majority said:

We consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.

Kimber demonstrates that should the COVID-19 vaccine be an inherent requirement of an employee’s role, the refusal to be vaccinated can be a valid reason for dismissal, however employers will need to consider whether the employee has a valid medical contraindication.

Can Employees Be Required to Wear a Mask?

One control method that employers may utilise, in addition to, or as alternative to vaccinations, to protect their employees from the spread of COVID-19 is a requirement that employees wear face masks within the workplace. However, similar to resistance that employers can face to vaccine mandates, it may be argued that mask mandates are unlawful, with employers not having the right to impose this requirement on employees.

This was the case in Watson v National Jet Systems Ltd [2021] FWC 6182, with the Fair Work Commission recently considering whether the employer, National Jet Systems (part of the Qantas Group) had, through mandating face masks within its workforce, constructively dismissed one of its flight attendants who argued she was forced to resign.

The Qantas Group required that masks be worn by its staff before public health directions to this effect had been made. The employee applied for a medical exemption from the mask-wearing mandate, with the medical certificate she provided indicating that masks made her ‘extremely anxious’. Despite evidence from her GP stating that she had ‘no medical condition of note’, he considered that the employee ‘has trouble performing her job safely’, with his advice and opinion being that she should not be required to wear a mask at work.

Qantas denied the medical exemption, not accepting that the employee suffered a medical condition that made wearing masks unsafe. Qantas allowed the employee to wear a face shield, however the employee continued to work with no face mask or shield, which resulted in a customer complaint.

In attempting to resolve the issue, the employee disclosed to Qantas that she had Hashimoto’s Disease and a benign frontal lobe tumour. Following this disclosure, Qantas declared the employee as being temporarily unfit for flying duties and arranged for an independent medical examiner to find out whether she could perform her role safely. Qantas offered the employee perform ‘non-safety critical duties’ in the meantime. The employee refused to attend the medical appointment or perform the alternative duties, following which Qantas directed her to return to flying duties and comply with the mask or shield requirement, warning that it might otherwise dismiss her.

The employee’s lawyer argued that the employment contract did not allow Qantas to mandate face masks ‘without her fully informed consent’ and that it ‘amounts to a substantive variation’ of its terms. The flight attendant also accused Qantas of discriminating against her because of her medical condition.

The Commission found that the mask mandate imposed by Qantas was a lawful and reasonable direction in the context of the COVID-19 pandemic. Due to Qantas providing the employee with options, such as attending work as directed or having an independent medical examination, the Commission found that the attendant had simply chosen not to do either of those things, and instead chose to resign from her employment.

This case indicates that when returning employees to the workplace, employers may be entitled to require employees to wear masks should they determine this is necessary to discharge its work, health and safety obligations unless the employee has a valid medical exemption. 

Where to from here?

Given the rapidly evolving circumstances surrounding COVID-19 and the easing of restrictions within the community, it is likely that more cases will make their way before the courts concerning the health and safety measures implemented by employers to ensure the safety of their workforce. For now, employers can take some comfort in the recent case law discussed above which indicates that vaccine and mask mandates can be lawful and reasonable directions where necessary for an employer to discharge its work health and safety obligations to minimise the risk of exposure to COVID-19 as far as reasonably practicable.

However, it is important that employers, if imposing these conditions on employees, consult with the workforce and consider whether these directions are reasonable in the circumstances. Employers should also have an exemption process for any valid medical conditions, and consider if there are alternative PPE or working arrangements available to prevent claims of discrimination.

Should you wish to obtain specific legal advice, the Employment group at McCabes Lawyers are available to assist employers with this developing area of the law.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023