Dismissal possibly unfair for unvaccinated worker who could work from home?

The jury is currently out (so to speak) on the issue whether the Fair Work Commission will regard the termination of the employment of an unvaccinated employee by an employer as possibly unfair when the employee could just as well work from home. However there is a hint of sympathy for such an employee in these words from a very senior member of the Commission when granting an employee an extension of time in which to make an application for an unfair dismissal remedy.

“Anglicare contends that Ms McHale’s application is without merit. Although it is not the function of the Commission in extension of time proceedings to determine, fully, the merits of the case, and in the present case no evidentiary testing of the parties’ respective positions was undertaken, nevertheless some assessment must be made. I do not consider the Ms McHale’s case is completely lacking in merit. There is a dispute about whether Ms McHale could perform her role from home. Nothing in the operative health order prevented an unvaccinated worker from performing their role from home. If Ms McHale can establish that her role could fully, efficiently, and productively be performed by her from home, then her application may have substantial prospects. Moreover, there is at least an arguable case that the dismissal was unfair because it was premature considering the advice that she and other co-workers received from Anglicare the day before the dismissal that recommend “people continue to work from home if you can”. Ms McHale had hitherto been working from home pursuant to the temporary arrangement in place. These are of necessity very preliminary views expressed for the purpose only of assessing whether the application is not without merit, and I so conclude. That the application is not without merit weighs in Ms McHale’s favour.”

McHale v Anglicare Victoria (2022) FWC 413 delivered 1 March 2022 per Gostencnik DP