Fair work cases; misconduct and being unvaccinated

So far as the unfair dismissal cases of the Fair Work Commission are concerned there is absolutely no doubt now that an employee who fails to become vaccinated against Covid 19 when his or her presence at work is unlawful by State government mandates and who is dismissed because he or she cannot meet the inherent requirements of the job (to go to work) cannot expect to win a claim of unfair dismissal.

And I have been contending now for months that such is the case. Nevertheless I am much less comfortable with the proposition that an employee in that situation is also guilty of misconduct justifying dismissal if he or she opts not to be vaccinated.

Here is a passage from a recent case which was apparently decided in the employer’s favour by that argument.

“Telstra’s direction did not require Mr Symbonis to act unlawfully. The question is whether it was within the scope of his contract of employment. In the present case, Telstra was prohibited by law from allowing Mr Symbonis to work outside his ordinary place of residence if he was unvaccinated. Telstra directed Mr Symbonis to be vaccinated. This direction clearly appertained to Mr Symbonis’ Role; unless he followed the direction, he could not do his job at all. I consider that a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction. Whether it is also a reasonable one will depend on all the circumstances. In my view, in the circumstances of this case, Telstra’s direction was reasonable. The Role required Mr Symbonis to move from location to location. He performed his duties at a range of high risk facilities such as health care facilities, shopping centres and sporting stadiums, coming into contact with customers, members of the community and other workers. Further, it was consistent with the terms of the Policy regarding health regulations. Mr Symbonis did not propose any reasonable alternatives. Accordingly, I consider that Telstra had a further valid reason to dismiss Mr Symbonis, one which involved misconduct constituted by a refusal to follow a lawful and reasonable direction.”

Symbonis v Telstra Corporation Ltd (2022) FWC 1018 delivered 4 May 2022 per Young DP