Apr 11th, 2022
The second half of 2022 was accompanied by a flurry of COVID-19 vaccine mandates imposed across all states and territories. These vaccine mandates had very real implications for the vast array of workplaces – generally, employees were not able to enter or remain on the workplace premises unless they were in compliance with the vaccine requirements, or they had a genuine medical exemption that prevented them from being vaccinated.
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While the majority of workers across the nation were either already planning to receive a COVID-19 vaccine, or received the vaccine in response to the mandate, there was a small minority of workers that refused to do so.
These vaccine mandates put businesses in the unenviable position of trying to have unvaccinated employees work from home where possible, be on a long term period of paid or unpaid leave, or follow a disciplinary process through until termination of employment by way of incapacity.
When their employment was terminated, many sought recourse via unfair dismissal claims.
Much with anything COVID-19 related, it was unprecedented territory in our industrial relations system and many were anxious as to how the Fair Work Commission would respond.
Now in April several months since these vaccine directions were put in place, we can review some of the cases that have gone through the Fair Work Commission (FWC) and in general assess how they are treated.
First, it is clear to see that the FWC will tend to favour the employer in the event an employee has not complied with a state vaccine direction while failing to provide a genuine medical reason for not doing so.
In multiple cases, an employer has terminated an employee because they are unable to fulfil the inherent requirements of the role, typically referring to not being in compliance with a state public health order.
O’Toole v Australian Community Support Organisation Ltd 2022 and Edwards v Regal Cream Products Pty Ltd 2022 are both straightforward cases in which an employee was dismissed because they did not intend to be vaccinated. In the case of the former, while the employee could perform some of their role from home, face-to-face service delivery was a feature of her employment that could not be met while working from home.
Some unvaccinated employees have wished to take leave in the meantime, waiting for further evidence, or under the belief that the vaccine directions would eventually “expire” or be relaxed. In Stevens v Epworth Foundation 2022, the employee asked to take further long service leave with the expectation the state government’s emergency powers would soon expire. However, the employer provided evidence that the state government intended to renew the public health direction, and that the employer themselves had implemented their own vaccination policy. The FWC determined there were reasonable business grounds to refuse the request for additional long service leave, and it was determined there was a valid reason for dismissal.
This same case also touches on another common line of thinking from individuals that refused to comply with these public health orders. The employee held the argument that Victoria’s public health order breached federal privacy and anti-discrimination laws. However, the FWC responded that the federal Privacy Act 1988 did indeed allow for evidence of vaccination status to be gathered, used, and stored, and with respect to discrimination – unvaccinated status is not a protected attribute under federal anti-discrimination laws.
However, not all employers get it right. In a somewhat well-known case that proceeded many of these state vaccine direction-relation dismissals, BHP was on the wrong end of the FWC.
BHP attempted to implement a vaccine mandate at their mining site at Mt Arthur. However, their stand down of workers who did not comply with this mandate was later overturned. BHP was in breach of their work health and safety (WHS) obligations by failing to properly consult with the workers prior to introducing the mandate. Little information was provided to workers about the risk assessment, neither health and safety representatives nor unions were engaged in any meaningful consultation and pre-established safety mechanisms like a health and safety committee were not used.
As a result, this failure to consult meant the direction to be vaccinated could not be considered reasonable and the vaccine mandate was therefore considered unlawful.
However, they did note that had BHP properly fulfilled their consultation obligations, there would have been a strong argument the vaccine direction was lawful and reasonable.
These cases mentioned speak to the common features of unfair dismissal claims in response to vaccine directions.
Ultimately, the FWC will consider if the employer had a valid reason for dismissing the employee (such as if vaccination is an inherent requirement of the role), if any alternative duties are available to the employee so that they aren’t required to be vaccinated, and if the employer has fulfilled their consultation obligations when introducing a vaccination policy.
Looking at this, businesses and employers should be able to rest more easily knowing that the FWC will back the requirements of the public health orders, and there is much less risk terminating the employment of their unvaccinated staff if they refuse to comply with these mandates. Nevertheless, employers still need to make sure they follow the correct procedures when doing so in order to tighten up any creaks in their case.