UPDATE: Dismissal of Unvaccinated Employee not unfair & Revocation of Directions

Since the introduction of Public Health Directions throughout 2021, requiring individuals (visitors or workers) to be vaccinated prior to entering the premises of a restricted business or vulnerable and/or high-risk setting, employers were faced with the prospect and reality of terminating employees for a failure to comply with such directives.

FWC Confirms Position

On 17 March 2022, the Fair Work Commission (FWC) has again confirmed that terminating a worker’s employment will not be considered harsh, unjust or unreasonable where a mandatory vaccine mandate is in place. Although an employee may freely refuse to receive a COVID-19 vaccination, it may be considered an inherent requirement of the role.

In Victoria, the FWC upheld the dismissal of a dietician (healthcare worker) after failing to provide proof of vaccination to their employer (see Isabella Stevens v Epworth Foundation [2022] FWC 593). The employer, Epworth Healthcare (Epworth), was subjected to a variety of Public Health Directions (Direction) which prohibited any visitors or workers to attend its facilities without proof of vaccination after 15 October 2021. Accordingly, Epworth provided notice of the mandate to all staff in September 2021. Despite the employee’s objections and fears with respect to the vaccines, Epworth affirmed their position and reiterated the legally binding nature of the directions and subsequently dismissed the employee in December 2021.

Is it unfair?

The FWC determined that the dismissal was not unfair by observing that there was a valid reason for dismissal related to the employee’s capacity or conduct under section 387(a) of the Fair Work Act 2009 (Cth). The FWC accepted that the Directions had the effect of binding Epworth to a new “regulatory requirement” with respect to its employees’ vaccination status. The dismissal was valid in circumstances where the employee’s capacity to perform their role was directly affected by Epworth’s strict liability to prevent unvaccinated workers from entering the workplace. Furthermore, the FWC made the following determinations in response to contentions raised by the employee:

1. Taking vaccine was to participate in medical trial procedure – rejected, because the relevant tests were undertaken prior to approval by the Therapeutic Goods Administration;
2. The employee would undertake PCR tests prior to every shift – rejected, because it was not a relevant consideration for Epworth under the Direction; and
3. The Directions were inconsistent with various Federal, Privacy and Human Rights laws – rejected, because at the relevant time, no Australian Court had determined that the Directions were invalid and such arguments did not carry any merit based on the submissions before the FWC.

Ultimately, the FWC surmised that the employee’s dismissal was valid because their choice not to be vaccinated resulted in their legal exclusion from the Epworth’s workplace. Although the employee was entitled to hold their opinion, Epworth had to comply with the law.

Other FWC cases confirming the valid dismissal of employees for failure to become vaccinated include:

1. Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669; and
2. Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92.

Revocation of QLD Directions

The Queensland Government revoked the Public Health and Social Measures linked to vaccination Direction on 14 April 2022, ending the requirement to ‘check-in’ or be fully vaccinated to enter a range of venues or events, including pubs, clubs, cafes, restaurants, theme parks, cinemas, casinos, weddings, showgrounds, galleries, libraries, museums and stadiums. For employers in these industries, it means that they can no longer rely on the Public Health Directions as a valid reason to terminate employment for failure to be fully vaccinated, unless employees are contractually required to do so – see article on Mandatory Vaccination Policies for important considerations.

However, vaccination and check-in requirements will continue for any persons visiting or working in vulnerable settings (e.g. hospitals, disability accommodation services and residential aged care) or high-risk settings (e.g. schools, childcare, prisons or airports).

If you are an employer or employee and you are uncertain as to whether you are protected from unfair dismissal in relation to vaccination status, please do not hesitate to contact our team at FC Lawyers.