Fair work cases; being unvaccinated a valid reason for dismissal

This extract from a recent unfair dismissal decision of the Fair Work Commission contains the reasoning of a senior member of the Fair Work Commission to reject the claim by an unvaccinated employee on the basis that it was a valid reason for dismissal.

“Consideration

[25] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[26] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 1

(a) whether there was a valid reason for the dismissal

[27] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[28] In light of government mandates, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 17 September 2021. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.

[29] It is uncontentious that as at 16 September 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her letter dated 20 September 2021, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction. In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.

[30] Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.”

Rimmer v DPG Services Pty Ltd (2022) FWC 425 delivered 28 February 2022 per Lake DP