The Fair Work Commission (FWC) has recently been called on to determine whether a worker’s offer to undergo polymerase chain reaction (PCR) testing instead of receiving a COVID-19 vaccination was a reasonable alternative to receiving the vaccine.
On 17 March 2022, the FWC delivered judgment in Stevens v Epworth Foundation  FWC 592 (Stevens). This case involved Ms Stevens making an unfair dismissal application against Epworth Foundation, trading as Epworth HealthCare (Epworth), where she had worked as a dietician from July 2011 until 3 December 2021. Ms Stevens was dismissed by Epworth on the basis that she was unable to meet the inherent requirements of her job, by refusing to provide Epworth with proof that she had been vaccinated against COVID-19.
In accordance with Victorian government directions in place at the time, Epworth was required not to allow Ms Stevens to attend the workplace on or after 15 October 2021 unless she had been vaccinated against COVID-19 and provided this proof to Epworth or alternatively provided proof that she had a booking to receive a vaccination by 29 October 2021. In her application, Ms Stevens alleged that the directions were unlawful or unfair, Epworth did not have a valid reason to dismiss her, and that Epworth should have allowed her to take long service leave as opposed to dismissing her.
Following the government directions, in September 2021 Epworth informed its staff that they would be required to receive the COVID-19 vaccination by particular dates. Later that same month, Ms Stevens commenced a period of sick leave which she remained on until 21 October 2021. On 1 October 2021, Ms Stevens wrote to Epworth Richmond’s executive general manager, Mr Simon Benedict, objecting to the requirement that she provide evidence of her vaccination status and sought assurances that the vaccines were safe and effective.
Ms Stevens and Mr Benedict exchanged multiple pieces of correspondence from this time until Ms Stevens’ dismissal on 3 December 2021. On 7 October 2021, Mr Benedict provided a letter to Ms Stevens, stating that the government directions were legally binding and required Epworth’s compliance, with contraventions leading to penalties being imposed against them. The letter went on to state that Epworth was not required to provide the assurances sought but noted the widespread medical support for the vaccination regime. The letter reiterated to Ms Stevens that all healthcare workers were required to be vaccinated by 15 October 2021 and provide evidence of this, or have a booking to receive a vaccination by 29 October 2021, unless the medical contraindication exception applied. It stated that Epworth was required to ensure that a worker who had not provided the required evidence did not enter or remain on Epworth’s premises for the purposes of work, these workers would not be able to perform their duties, would not be paid and therefore would have implications on their ongoing employment.
On 11 October 2021, Ms Stevens wrote a further letter to Mr Benedict, questioning the safety of the vaccines and requesting to take annual leave at the end of her period of sick leave on 21 October 2021.
Ms Stevens did not provide Epworth with the necessary evidence as she was required to under the government directions, nor did she provide a medical exemption in relation to the vaccines. On 18 October 2021, Mr Benedict informed Ms Stevens that she was authorised to take annual leave from 21 October 2021 until 29 October 2021. He restated the requirements of the directions and that the failure to meet these requirements would have implications on her future employment. Ms Stevens sent a further letter to Mr Benedict dated 27 October 2021 again objecting to the requirement that she provide proof of vaccination based on her privacy. This letter stated that she had applied for a period of long service leave and she planned to return to work on 3 November 2021.
On 29 October 2021, Mr Benedict directed Ms Stevens not to attend the workplace on 3 November 2021 due to failing to provide the vaccination information as required. Mr Benedict informed Ms Stevens that she was able to take long service leave until 23 November 2021 and from this date it was not suitable for her to take any further period of long service leave. The letter stated that it was Ms Stevens’ right not to provide the information being sought and that Epworth could not require her to confirm she had been vaccinated, but without this information she would not be allowed onto the premises for work.
Ms Stevens responded to Mr Benedict’s letter on 18 November 2021, disputing the direction’s lawfulness and the requirement that she provide information about her vaccination status.
On 22 November 2021, Mr Benedict informed Ms Stevens that Epworth had requested confirmation of her vaccination status multiple times but she had failed to provide such information. In light of this, Epworth had determined that it was untenable for Ms Stevens to continue in her employment as there was no indication that she would be able to lawfully perform her role in the short to medium term, yet her role was required to be performed on an ongoing basis due to the business’ operational requirements. The letter provided Ms Stevens with the opportunity to show cause prior to a final decision being made as to why her employment should not be terminated by 1 December 2021.
The same day, Ms Stevens wrote to Mr Benedict requesting that her long service leave be extended. Mr Benedict responded on 29 November 2021 denying the extension.
On 1 December 2021, Ms Stevens responded to the show cause letter, stating that the directions were invalid or did not apply as they were contrary to privacy and discrimination laws, she was fit, healthy and content to undergo PCR testing to show she did not have COVID-19. She indicated that she would not be providing her health information to Epworth and it was unlawful for it to request her to do so, with Epworth acting unlawfully by preventing her to continue in her employment.
In a letter dated 3 December 2021, Mr Benedict advised Ms Stevens that her proposal to undergo PCR testing did not satisfy the requirements of the directions that applied to Epworth. It stated that the directions were likely to remain in force for an extended period, but irrespective of this Epworth had its own internal policy that workers must be vaccinated. The letter stated that it was not possible for Ms Stevens to perform the key requirements of her role from home and it was not reasonably possible to deploy her to a role not requiring attendance at the workplace. Ms Stevens’ employment was to end that day and she was to be paid 5 weeks’ pay in lieu of notice.
Decision of the FWC
In determining the unfair dismissal application, the FWC found that Ms Stevens’ alternative to getting the vaccinations, namely undergoing PCR testing, was not a reasonable alternative to being vaccinated, and Epworth were not obliged to prove that vaccines are safe.
In upholding her dismissal, the FWC considered the evidence led by Ms Stevens and her argument that she was being made to participate in a ‘medical trial procedure’ without being provided with an alternative. The FWC stated as follows at :
Ms Stevens’ representative made reference to various reports and articles said to cast doubt on the efficacy or safety of COVID-19 vaccines. But no expert evidence was led. In any event, the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.
When considering whether Epworth had a valid reason for the dismissal related to Ms Steven’s capacity or conduct in accordance with section 387(a) of the Fair Work Act 2009 (Cth), the FWC held at -:
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason. In my view, Epworth had a valid reason to dismiss Ms Stevens. It was one related to her capacity to perform her role. Ms Stevens is entitled to her opinions about the efficacy and safety of the COVID-19 vaccines. Ms Stevens was also within her rights to decline to become vaccinated or to provide Epworth with the information requested from her. But her choices had the inevitable consequence that Ms Stevens rendered herself unable to perform her job. Epworth was prohibited by law from allowing her to attend the workplace unless she provided the required evidence. Had Epworth allowed Ms Stevens to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties. There was in effect a new regulatory requirement that attached to Ms Stevens’ job. She could have decided to take the necessary steps to meet the requirement.
I reject the contention that Epworth was forcing Ms Stevens to participate in a ‘medical trial procedure’. She was not forced to do anything. And the rollout of COVID-19 vaccinations is not a trial. Relevant tests and trials took place prior to the TGA approval of those vaccines for use in Australia. It is not correct to say that Ms Stevens had no alternative but to become vaccinated. She did have an alternative. It was the alternative that she decided to choose, even though, for Ms Stevens, it was a very difficult choice. It was the alternative that involved her legal exclusion from Epworth’s workplace.
In regards to the alternative to undergo PCR testing, the FWC stated at :
Ms Stevens contended in her written submissions that it was relevant for the Commission to take into account the fact that she had offered to undergo a PCR test to demonstrate that she did not have COVID-19, and that this would have been a reasonable alternative to her dismissal. This is not the case. The Directions did not provide for exceptions in respect of employees who return negative COVID-19 tests. Ms Stevens contended that it was unfair of Epworth not to provide her with assurances concerning the safety or efficacy of the COVID-19 vaccines, but Epworth was not required to do so, and nor in my opinion ought it reasonably to have done so.
While holding that Ms Stevens had the right to her choice to not provide the required information and receive a COVID-19 vaccine, the FWC held that Epworth in turn had the right to prevent her from attending the workplace and to terminate her employment. Epworth was following the Victorian government’s directions, which were acknowledged by the FWC as ‘not [being] declared by a court to be invalid’. The directions did not provide for PCR testing to be applied as an alternative to receiving the required vaccinations, and was therefore found to not be an alternative that was available to Ms Stevens. Were Epworth to have allowed such an alternative, it would have broken the law.
The key takeaway for employers from this case is that where an employee does not wish to be vaccinated in accordance with a public health order or government direction, unless the direction provides otherwise, there will be no alternative available to them instead of receiving the vaccine. PCR testing will not be considered to be a reasonable alternative, as in this case the Victorian government’s directions did not provide employees with an alternative other than receiving the vaccination itself.
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 , 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 , 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 : "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 dictionary.com 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.
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  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.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.