A Sydney woman has claimed victory in a legal case against her employer after being put on unpaid leave over the COVID-19 vaccine mandates.
Xin Yin Ooi, who works as the lead data analyst at the New South Wales (NSW) Department of Planning and Environment, revealed the court’s oral decision on May 15, saying she felt “a deep sense of duty” to make the case public as it “may be useful for others who are pursuing similar cases.”
“I thank the Court for delivering justice over this grievance which has troubled me for a long time, and for acknowledging my right to pursue medical information before consenting to a medical procedure.”
How The Case Began
Ms. Ooi received a letter from the department’s deputy secretary on March 15, 2022, asking her to cease work on the basis that she failed to comply with the COVID-19 vaccine mandate and the condition of her temporary exemption.The exemption, which was valid until April 1, required Ms. Ooi to get her first dose by March 9 and submit her signed vaccination declaration by April 1.
“If you fail to comply with this direction then I will consider commencing misconduct action against you under s 69 of the GSE Act,” the letter stated.
“You are directed to take leave. If you fail to apply for leave or do not have appropriate leave that you are entitled to take, then you will be placed on leave without pay effective from the date of the letter.”
The department initially granted Ms. Ooi the temporary exemption so that she could “investigate and obtain medical advice about the Novavax vaccine,” according to the court’s document.
Dispute Over Unpaid Wages
On March 16, Ms. Ooi stopped working and the department placed her on leave without pay. She also received a misconduct notice on March 30 alleging that she had not complied with the vaccination policy.But the event took a different course on April 14, when the department sent out a letter saying their vaccination policy was under review, that Ms. Ooi was “no longer required to take her own leave and that the misconduct process was suspended pending the outcome of the review.”
Ms. Ooi argued that the department’s decision to put her on unpaid leave was unlawful, adding that she was “entitled to be reimbursed for unpaid wages for a period of 21 days” when she was forced to take leave.
However, the department argued that Ms. Ooi’s claim “should be properly viewed as a debt matter and that no debt is incurred in relation to wages for the period during which Ms. Ooi did not work.” This means that “it does not matter whether the defendant had a right to suspend Ms. Ooi.”
The Court’s Decision
In a transcript (pdf) released on April 10, the local court in Downing Centre found that the department “acted unreasonably in its application of the policy” to Ms. Ooi.“It was unreasonable to direct Ms. Ooi to get vaccinated or obtain an exemption and return to the office at that time as she had a valid working from home agreement in place,” the document read.
“She was actively investigating Novavax, being the basis upon which her alternative work arrangement was approved, and her role and duties were capable of being performed remotely, noting that she had done so for the last two years.”
“There was no clear and unequivocal direction by the department for employees to return to working from the office. At best it was an expectation.”
The court also ruled that there is “no lawful basis to place an employee on leave without pay.”
“Given that there was no basis to place an employee on leave without pay, a noncompliance with a policy is a breach of the code of ethics.”
Ms. Ooi successfully claimed payment of unpaid wages and entitlements of $13,667.03 (US$9,100) for a period of 21 days, from March 16 to April 30, 2022, when she was suspended from her job.
