Fair work cases; dismissals of unvaccinated workers “fair”

As this extract from a Fair Work Commission unfair dismissal makes clear, it is now orthodoxy for the Commission to regard the termination of the employment of an employee as perfectly fair where an employer does so to comply with government covid 19 workplace vaccination mandates and is conservative in the manner in which the process plays out.

“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.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[31] Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 17 September 2021, her employment may be terminated. She had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the mandate. This was done prior to 17 September 2021, and again after being issued with the show cause notice and prior to her termination on 20 September 2021. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.

(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

[32] The Applicant has not claimed that she was unreasonably refused a support person.

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

[33] Given the reasons for the Applicant’s termination, this factor is irrelevant.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[34] The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.

(h) any other matters that the FWC considers relevant

[35] I have regard to the fact that the Applicant had worked for the Respondent for an extensive period, and there were no allegations that she had been anything other than a dedicated employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to comply with the government mandate. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.

Conclusion

[36] Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.

[37] I therefore order that the Applicant’s application be dismissed.”

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