Covid mandates and unfair dismissal outcomes

There are now many decisions of the Fair Work Commission dismissing unfair dismissal claims brought by employees aggrieved that their employment has come to an end because of State government covid 19 vaccination mandates. Here are some passages from another.

“Application for an unfair dismissal remedy – employment subject to Directions of Victorian Acting Chief Health Officer – Respondent required to comply with the Directions to collect, record and hold vaccination information and not allow unvaccinated workers to attend the workplace – Applicant terminated on the basis that he was unable to meet requirements of his contracted position – valid reason for termination of employment – Dismissal not unfair – observation on efforts to mitigate loss………………………

Was there a valid reason for dismissal relating to Mr Byrne’s capacity or conduct? – s.387(a)

[30] In considering whether the dismissal of Mr Byrne was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 6 and should not be “capricious, fanciful, spiteful or prejudiced”.7

[31] In its letter dated 29 October 2021, Bulla outlined it was terminating Mr Byrne’s employment because he was unable to meet the inherent requirements of his contracted position, having chosen not to be vaccinated and having failed to provide a valid medical exemption.

[32] Mr Byrne submits there was no valid reason for his dismissal. In his email to Bulla on 21 October 2021, he described the Directions as “unlawful” and “temporary.” Neither of these propositions hold. The Directions have at no stage been declared invalid by a Court. They have been in effect at all material times and have been extended. Further, they applied to Bulla as the employer of Mr Byrne, a manufacturing worker who worked at or in connection with a premises used for the distribution, production or processing of food. It has not been suggested Mr Byrne could have performed his work at home.

[33] Mr Byrne asserts he did not inform Bulla that he refused to be vaccinated but this does not advance things for him because he does not dispute that he was neither fully vaccinated nor partially vaccinated at all material times. Further, Mr Byrne accepted that the Directions applied to both himself and Bulla and that Bulla was required to treat him as unvaccinated. 8

[34] I have also not been persuaded by Mr Byrne’s submission that access and inquiry into his medical history was unlawful according to federal “medical privacy” legislation. 9 Mr Byrne did not develop this submission in any way and, as was proffered by Deputy President Colman in Isabella Stevens v Epworth Foundation (Stevens),10 there is no reason to think that the Directions are inconsistent with the Privacy Act 1988 (Cth) or that evidence of vaccination status cannot be collected, recorded and stored in accordance with the privacy principles.

[35] There are a number of things that can be said in response to Mr Byrne’s assertion that his contract with Bulla did not make “experimental and provisionally approved medical experiments/vaccines” mandatory. Firstly, whatever view Mr Byrne may wish to express in relation to the COVID-19 vaccines that were available at the time of his termination, these vaccines had been approved for use by the Therapeutic Goods Administration (TGA), Australia’s national regulator. Secondly, Mr Byrne’s assertion regarding his contract of employment with Bulla proceeds on the incorrect premise that parties to an employment contract can contract out of requirements validly imposed by law and any accompanying obligations that may flow. Regardless, there was no mandatory requirement for Mr Byrne to receive a COVID-19 vaccination. However if, as transpired, Mr Byrne chose to not become vaccinated and did not hold the certification required to be regarded as an “excepted person” under the Directions, he was unable to perform his job for Bulla.

[36] In his email to Bulla dated 21 October 2021, Mr Byrne made a range of assertions. As to these:

  1. a) If it is put that termination on the basis of his vaccination status was discriminatory pursuant to s.351 of the Act, I reject this. One’s vaccination status is not a protected attribute under this provision or discrimination law more generally;
    b) Mr Byrne was not terminated on the basis of a physical or mental disability and so from this, it follows that I am not persuaded he was terminated in breach of s.352 and/or Regulation 3.01 of the Fair Work Regulations 2013;
    c) In circumstances in which Bulla was seeking to ensure it was acting in compliance with the law, I am not persuaded it was engaging in coercive behaviour;
    d) Mr Byrne’s undeveloped assertions regarding Ministerial codes of conduct are in no way determinative in the matter before me.

[37] Putting to one side the assertions in Mr Byrne’s email to Bulla dated 27 October 2021 that he was in the process of obtaining a valid medical certificate, having completed and submitted the “appropriate paperwork” for which approval was pending, I nonetheless observe that on 29 October 2021, Mr Byrne was neither fully nor partially vaccinated and had not provided evidence that he was an “excepted person”. Accordingly, Bulla did not “hold” vaccination information about Mr Byrne on 29 October 2021 and was therefore required under the Directions to treat him as if he was unvaccinated. 11 The consequence of this was that Bulla was prohibited under the Directions from allowing Mr Byrne to work outside of his ordinary place of residence. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty. I am therefore satisfied that Bulla had a valid reason for dismissing Mr Byrne on 29 October 2021 that was related to his capacity because at that time, Mr Byrne lacked the capacity to perform the job he was employed to do…………………….. Was there a valid reason for dismissal relating to Mr Byrne’s capacity or conduct? – s.387(a)

[30] In considering whether the dismissal of Mr Byrne was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 6 and should not be “capricious, fanciful, spiteful or prejudiced”.7

[31] In its letter dated 29 October 2021, Bulla outlined it was terminating Mr Byrne’s employment because he was unable to meet the inherent requirements of his contracted position, having chosen not to be vaccinated and having failed to provide a valid medical exemption.

[32] Mr Byrne submits there was no valid reason for his dismissal. In his email to Bulla on 21 October 2021, he described the Directions as “unlawful” and “temporary.” Neither of these propositions hold. The Directions have at no stage been declared invalid by a Court. They have been in effect at all material times and have been extended. Further, they applied to Bulla as the employer of Mr Byrne, a manufacturing worker who worked at or in connection with a premises used for the distribution, production or processing of food. It has not been suggested Mr Byrne could have performed his work at home.

[33] Mr Byrne asserts he did not inform Bulla that he refused to be vaccinated but this does not advance things for him because he does not dispute that he was neither fully vaccinated nor partially vaccinated at all material times. Further, Mr Byrne accepted that the Directions applied to both himself and Bulla and that Bulla was required to treat him as unvaccinated. 8

[34] I have also not been persuaded by Mr Byrne’s submission that access and inquiry into his medical history was unlawful according to federal “medical privacy” legislation. 9 Mr Byrne did not develop this submission in any way and, as was proffered by Deputy President Colman in Isabella Stevens v Epworth Foundation (Stevens),10 there is no reason to think that the Directions are inconsistent with the Privacy Act 1988 (Cth) or that evidence of vaccination status cannot be collected, recorded and stored in accordance with the privacy principles.

[35] There are a number of things that can be said in response to Mr Byrne’s assertion that his contract with Bulla did not make “experimental and provisionally approved medical experiments/vaccines” mandatory. Firstly, whatever view Mr Byrne may wish to express in relation to the COVID-19 vaccines that were available at the time of his termination, these vaccines had been approved for use by the Therapeutic Goods Administration (TGA), Australia’s national regulator. Secondly, Mr Byrne’s assertion regarding his contract of employment with Bulla proceeds on the incorrect premise that parties to an employment contract can contract out of requirements validly imposed by law and any accompanying obligations that may flow. Regardless, there was no mandatory requirement for Mr Byrne to receive a COVID-19 vaccination. However if, as transpired, Mr Byrne chose to not become vaccinated and did not hold the certification required to be regarded as an “excepted person” under the Directions, he was unable to perform his job for Bulla.

[36] In his email to Bulla dated 21 October 2021, Mr Byrne made a range of assertions. As to these:

  1. a) If it is put that termination on the basis of his vaccination status was discriminatory pursuant to s.351 of the Act, I reject this. One’s vaccination status is not a protected attribute under this provision or discrimination law more generally;
    b) Mr Byrne was not terminated on the basis of a physical or mental disability and so from this, it follows that I am not persuaded he was terminated in breach of s.352 and/or Regulation 3.01 of the Fair Work Regulations 2013;
    c) In circumstances in which Bulla was seeking to ensure it was acting in compliance with the law, I am not persuaded it was engaging in coercive behaviour;
    d) Mr Byrne’s undeveloped assertions regarding Ministerial codes of conduct are in no way determinative in the matter before me.

[37] Putting to one side the assertions in Mr Byrne’s email to Bulla dated 27 October 2021 that he was in the process of obtaining a valid medical certificate, having completed and submitted the “appropriate paperwork” for which approval was pending, I nonetheless observe that on 29 October 2021, Mr Byrne was neither fully nor partially vaccinated and had not provided evidence that he was an “excepted person”. Accordingly, Bulla did not “hold” vaccination information about Mr Byrne on 29 October 2021 and was therefore required under the Directions to treat him as if he was unvaccinated. 11 The consequence of this was that Bulla was prohibited under the Directions from allowing Mr Byrne to work outside of his ordinary place of residence. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty. I am therefore satisfied that Bulla had a valid reason for dismissing Mr Byrne on 29 October 2021 that was related to his capacity because at that time, Mr Byrne lacked the capacity to perform the job he was employed to do.”

 

Byrne v Regal Cream Products Pty Ltd (2022) FWC 809 delivered 8 April 2022 per Clancy DP