Employee Litigation: Termination Because Of Vaccination Status
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In 2021 a significant proportion of employers implemented vaccination policies, either because they were required due to Public Health Orders or on account of the employer implementing their own policy in the absence of a Public Health Order. Since then there have been cases filtering through the Fair Work Commission (FWC) where such employers enforced their vaccination policy. According to the FWC, common vaccination related cases included unfair dismissal applications, general protections applications, disputes regarding workplace vaccination policies and an employee’s entitlement to be paid while they were stood down or on leave. This update aims to summarise the current standing by answering the following questions:
WERE EMPLOYERS ENTITLED TO IMPLEMENT A VACCINATION POLICY?
It is now widely accepted that employer vaccination policies can constitute a lawful and reasonable direction even in the absence of a Public Health order underpinning the vaccination policy. The FWC in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors  FWC 81 held that requiring evidence of an employee’s vaccination for access into a workplace was not coercion or economic duress. The FWC also addressed a common argument and found that asking for an employee’s vaccination status does not breach the Privacy Act 1988 (Cth).
In the recent decision of Adam Kachwalla v ARA Security Services Pty Ltd  FWC 1459, the employer attempted to implement a vaccination policy even though New South Wales had not mandated vaccinated in the security sector. The FWC found that the employer’s policy was reasonable even though they hadn’t been the subject of government mandates.
The cases have however demonstrated that it was important for an employer to follow the necessary procedural requirements. In Construction, Forestry, Maritime, Mining and Energy Union and Anor v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal  FWCFB 6059, the FWC found that the employer’s vaccination policy was unreasonable because the employer had failed to consult its employees. Pursuant to s 47-49 of the Work Health and Safety Act 2011 (Cth), an employer must consult with their employees regarding matters that relate to their work health or safety.
WERE EMPLOYERS ABLE TO ENFORCE A VACCINATION POLICY BY TERMINATING EMPLOYEES WHO DIDN’T COMPLY?
There have been a number of unfair dismissals and general protection claims relating to vaccination policies. These have typically occurred in situations where an employee was dismissed for failing to provide proof of vaccination status or failing to obtain the vaccine. Though there have been many cases, it has been established that dismissals pursuant to a failure to meet requirements of Public Health Orders constitutes a valid reason for dismissal.
In Hillenaar v RTL Mining and Earthworks Pty Ltd  FWC 484, due to restrictions introduced by the Victorian Government, employees could not enter mining sites unless they were vaccinated against COVID-19 or held a valid medical exemption. The FWC found that dismissal of an employee because they could not lawfully enter the worksite was not harsh, unjust or unreasonable.
This decision has also been extended to include failure to comply with workplace vaccination policies where no Public Health Order underpinned the vaccination policy. In Damevski v Westpac Banking Corporation  FWC 1553, the employer dismissed Mr Damevski for failing to provide his vaccination status. The FWC found that due to the seriousness of the COVID-19 pandemic, the employer’s policy was not only reasonable but that the employee’s dismissal for failure to comply was not unfair.
While it is generally reasonable to dismiss an employee for failure to comply with a vaccination policy, in Marriott v Baptcare Limited  FWC 300, the FWC found that a premature dismissal constituted unfair dismissal. Mr. Mariott was dismissed for failure to provide evidence of his vaccination status. The FWC found that even though Marriott failed to provide his vaccination status, the dismissal was premature as pursuant to the employer’s policy, Marriott could have worked from home for more than three months after his dismissal without being vaccinated.
WERE EMPLOYEES ENTITLED TO PAY IF STOOD DOWN OR ON LEAVE PURSUANT TO A VACCINATION POLICY?
In Wilkinson v Eastern Health  FWC 260, the FWC found that in cases where a Public Health Order prohibited unvaccinated employees from working onsite, they were not entitled to paid personal leave. This was decided on the basis that paid personal leave is paid according to the number of hours the employee would have worked. If an employee is unvaccinated, they are not entitled to any hours and therefore are not entitled to paid personal leave. A similar outcome occurred in Nidai v Autonexus Pty Ltd  FWC 841, where an employee was stood down for failure to provide evidence of being vaccinated or medically exempt. The employee returned to work after the vaccination mandate was lifted and attempted to claim pay for the period he was stood down. The FWC refused to grant this on the basis that the employee refused to provide his status and was effectively unable to perform the inherent requirements of his role during this leave period.
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This article was written by Mark Stephen of Pointon Partners.